By Michael Nadin Update on employment Status claims Establishing “worker” status (as separate from being…
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In an important test case concerning a bus driver who claimed to have been forced to work eight-hour shifts without a break, the Employment Appeal Tribunal (EAT) has warned employers that they are required to take a proactive approach to compliance with the Working Time Regulations 1998 (WTR).
The man’s working day was fixed at eight and a half hours on the basis that he would enjoy a half-hour unpaid lunch break. However, the nature of his work made it difficult in practice for him to take such breaks. He complained to an Employment Tribunal (ET) that his employer had either instructed him, or expressed an expectation, that he would work straight through for eight hours and then leave work half an hour earlier than he would otherwise have done.
In dismissing his claim, however, the ET found that his employer had not refused to allow him to exercise his right to the minimum 20-minute break periods required by the WTR. The first time that he had complained about not being afforded breaks was when he lodged a formal grievance that his health had been affected by being forced to work non-stop for eight hours.
In upholding his challenge to that decision, the EAT noted that there was conflicting legal authority as to whether there had to be an active refusal by an employer to allow breaks in order to give rise to liability under the WTR.
A commonsense interpretation of the WTR imposed a duty on employers to actively respect workers’ rights to rest breaks. They were required not merely to permit such breaks but to proactively ensure that working arrangements allowed for workers to take them. Such an interpretation was more in accordance with the wording of the underlying Working Time Directive. The EAT was minded to send the matter back to an ET for reconsideration but left the door open for further submissions in respect of relief.