Can a failure to provide rest breaks under Working Time Regulations lead to personal injury damages?

Employers who refuse rest breaks may be liable for personal injury caused by the lack of breaks

In most circumstances, workers are entitled under the Working Time Regulations 1998 (WTR) to an unpaid rest break of 20 minutes if they work for more than six hours in a day. If an employer arranges work so that a worker cannot take this break, the worker can bring a claim in an employment tribunal. If the claim is successful, the tribunal must make a declaration that the right has been denied and may award compensation. The tribunal will consider what amount is just and equitable to award, based on the employer's default and any loss to the worker attributable to the breach.

The recent Court of Appeal case of Gomes v Higher Level Care Limited [2018] EWCA Civ 418 confirmed that injury to feelings awards are not available to employees who have been denied rights under the WTR. However, the EAT has now held that personal injury awards are available in these circumstances. The injury suffered by the claimant was relatively minor in this case, but employers should be aware of the potential for significant awards where a worker suffers serious mental or physical consequences of WTR breaches.

Case details: Grange v Abellio London Ltd

Mr Grange worked for Abellio, originally as a bus driver and later as a Relief Roadside Controller (known as a SQS). As a bus driver, he was given fixed rest breaks in line with the WTR. As a SQS, he monitored and regulated bus services in response to traffic conditions. In this role, he worked for 8 hours a day and had a 30 minute unpaid lunch break which he found difficult to find time to take given the nature of his work. Mr Grange submitted a grievance complaining that he had been forced to work without a break and that this had contributed to a decline in his health. He then brought a claim under the WTR to an employment tribunal.

Mr Grange argued that, due to a bowel condition, the lack of rest breaks had caused discomfort that was more than a minor inconvenience. The tribunal made an award of £750 for the discomfort and distress he suffered during a 14 day period (the tribunal having determined that breaches relating to earlier periods were out of time).

The EAT agreed that compensation for breach of the WTR could include personal injury damages. It pointed out that the decision in Gomes was concerned with injury to feelings awards and did not rule out personal injury awards. It also commented that the purpose of the European Working Time Directive, which was incorporated into UK law by the WTR, is to protect the health and safety of workers and that it would therefore be "natural" for personal injury awards to be made on breach of the WTR.

What are the other entitlements to rest breaks under the WTR?

Workers are also entitled to 11 hours' uninterrupted rest per day and either 24 hours' uninterrupted rest per week or 48 hours' uninterrupted rest per fortnight. Some workers are excluded from these rules, for example, if they carry out activities which involve the need for continuity of service (such as staff in hospitals, residential institutions and prisons). In these cases, there are special rules about providing compensatory rest when normal breaks cannot be taken.

Are there any other risks for an employer who breaches the WTR?

The Health and Safety Executive can issue notices of improvement or prohibition. Employers who do not comply with these notices within the time limit commit a criminal offence and, in cases of high risk and serious non-compliance, could face prosecution, with the imposition of unlimited fines and up to two years' imprisonment for directors.

Workers or employees?

It is important to remember that the WTR give rights to workers.  That is a wider category than just employees.  A significant number of recent "gig economy" cases on the issue of worker status highlight the risk that nominally self-employed or freelance contractors could be found by a tribunal to be workers if they are not in business on their own account and have to provide the service personally.  An employer's responsibility to provide in-work, daily and weekly rest periods, as well as limits to the working week, and following this case any potential liability for personal injury for breach, extends to this wider category of worker.

If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any other member of the Employment team on 0113 244 6100. You can also keep up to date by following Wrigleys Employment team on X. The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.