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BusinessLegal Laws

Can employees waive their right to a break

By May 8, 2018 No Comments

The Working Time Directive 1998 states that workers must have a rest break of 20 minutes if they work in excess of six hours. Many employees independently make the decision to work through rest breaks, particularly in today’s fast paced and competitive working environments. How then does that sit with an employer’s legal duty, as well as with the worker’s rights? There have been a number of cases in the courts on this issue over the last 10 years, the latest of which is the Employment Appeal Tribunal’s decision in Grange vs Abellio London Limited (UKEAT/0130/16/DA).

The legal position before this new case was that for an employee to rely on the right to a rest break in the courts, the employer had to refuse a request for a break. However the Grange case takes a more practical approach. In essence an “employer cannot withdraw into a passive role and grant rest periods only to those workers who ask for them”. An employer therefore as a positive duty to provide workers with rest breaks and to allow working arrangements to develop which do not allow for breaks will be taken as a breach of that positive duty.

Therefore employers must now take active steps to ensure that the employees are able to take breaks so that it can be demonstrated they met their obligations – because it is no longer possible to rely on the defence that the worker did not request a break. The Grange case also makes it easier for an employee to later enforce their right, as a worker no longer needs to show they made a request for a break which was subsequently refused.

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