Is an employee required to ask for a rest break before claiming to have been refused a rest break?


Prior to July 2012, the employee had an eight and a half hour working day, paid for eight hours, with the intention that he take a half hour unpaid lunch break (although the nature of his work meant that this could be difficult to fit into the working day).  On 16 July 2012, the employer emailed the employee expressing its expectation (at best) or instruction (at worst) that he was to work straight through for eight hours, without the half hour break, but then to leave earlier than he would have done before.  In July 2014, the employee lodged a grievance complaining that he had been forced to work without a break, which had contributed to a decline in his health.

The employee made a claim based on section 10 of the Working Time Regulations 1998 that he had been refused a rest break, but the employment tribunal held that he had never asked for a rest break and therefore he had never been refused one. The EAT overturned the decision on the grounds that the instruction to work without a rest break could be construed as a refusal, without an explicit request.

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