In reality, many workers in high-pressured environments do not take rest breaks and will not complain that the right has been denied to them. Their perception may be that it is their choice, given their heavy workload, not to take a break. However, an employer will not be able to use that as a defence if the employee later complains and seeks to enforce their rights following a recent Employment Appeal Tribunal decision.

This case has shown that whilst employees cannot be forced into taking their ‘rest break’, it is the employer’s responsibility to encourage them to do so.

Prior to 2012 Abellio London Ltd (AL), the Respondent, hired employees to work eight and a half hour days with half an hour ‘rest break’ somewhere towards the middle of the day. However due to the nature of the work it became very difficult for employees to take this break and they would work consistently for the eight and a half hours.

In 2012 AL reduced the working day to eight hours so employees only worked the eight hours they were paid for. In 2014 one employee G raised a grievance stating he had been working for the past two years without a break. AL rejected this argument.

G lodged an Employment Tribunal claim under the Working Time Regulations 1998 on the basis that he had not been allowed to exercise his right to the 20 minute break employees are entitled to if they work longer than a six hour day.

The claim was rejected by the Employment Tribunal because there was no distinct ‘refusal’ by the employer to allow G to take the break. However on appeal the Employment Appeal Tribunal has ruled that the employer must encourage ‘rest breaks’ as a health and safety right and  if the breaks are not encouraged they are technically ‘refused’, supporting G’s original claim.

The matter has been sent back to the Employment Tribunal to re-consider.