Failure to provide rest breaks under Working Time Regulations entitles employee to personal injury damages

Grange v Abellio London Ltd UKEAT/0304/17

Why care

The Working Time Regulations 1998 (WTR) entitle workers to an unpaid rest break of 20 minutes when working for more than six hours per day and complaints for alleged breaches can be brought in the employment tribunal.

Where claims are successful a tribunal must make a declaration to that effect and may make an award of compensation, the amount of which is what the tribunal considers just and equitable in all the circumstances.

The tribunal must consider both the employer's default in refusing to permit the worker to exercise the right and any loss sustained by the worker which is attributable to the complaint.

In terms of damages which may be recoverable, the Court of Appeal in Gomes v Higher Level Care Limited held that damages were not recoverable for injury to feelings but that decision did not exclude personal injury damages

In this case the EAT awarded damages for personal injury as compensation for an employer's failure to permit a worker to take rest breaks.

The case

Mr Grange was employed by Abellio London Ltd (Abellio). Initially, his working day lasted eight-and-a-half hours with half an hour being unpaid and treated as a rest break. Several years later his working day was reduced to eight hours, so that employees would work without a break and finish half an hour earlier.

In 2014 Mr Grange raised a grievance stating that he had been forced to work without a meal break for the previous two and a half years which had affected his health.

Following his grievance being heard and rejected Mr Grange brought an employment tribunal claim that Abellio had refused to permit him to exercise his entitlement to a rest break throughout different periods of his employment.

The tribunal dismissed his claim on the basis that there was no deliberate act of refusal by the employer.

Mr Grange appealed successfully to the EAT which held that there could be a refusal if the employer makes working arrangements that fail to allow workers to take rest.

The EAT sent the case back to the employment tribunal for it to consider whether as a matter of fact rest breaks had been denied in respect of different time periods.

At this hearing the tribunal held that for jurisdictional issues there were only 14 days in which Abellio was in breach of the WTR. It heard evidence from Mr Grange (who didn't provide medical evidence) that, due to a bowel related medical condition, the lack of rest breaks had caused discomfort that was more than a minor inconvenience.

The tribunal considered that a just and equitable award was £750 for the "discomfort and distress" caused by the employer's refusal to allow rest breaks over 14 working days

Both parties appealed; Mr Grant arguing that limiting his claim in time had not been previously raised and Abellio on the basis that the WTR does not allow an award of damages for personal injury and, alternatively, that £750 was an excessive award.

The EAT dismissed Mr Grange's appeal on jurisdiction because, once raised either by a party or the tribunal itself, the tribunal is bound to consider a question of jurisdiction.

It also dismissed Abellio's cross-appeal in respect of the damages award noting that the Gomes case did not preclude an award of damages for personal injury.

Neither did the EAT view the award as excessive. Low value claims could be dealt with on a common-sense basis, without the need for medical evidence. Mr Grange had given evidence and been cross examined on how the lack of rest breaks had affected his health so the tribunal had enough evidence to make an award of £750 for 'discomfort and distress'

What to take away

Employers should monitor their rest break procedures to ensure that they are not permitting circumstances to arise where workers are being denied rest breaks.

Where workers can show that this is the case which has resulted in them suffering personal injury they may be awarded such compensation that the tribunal considers "just and equitable" without necessarily being required to provide medical evidence in low value claims.