Case Law Update December 2016

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Working time and rest breaks – must an employee have asked for a rest break in order to be able to claim they have been refused one?

Grange v Abellio London Limited – UKEAT/0130/16

The Employment Appeal Tribunal (EAT) has held that it is not necessary for a worker to actually request a rest break in order to be able to claim that he has been refused one in contravention of the Working Time Regulations 1998.

The facts

The Claimant’s employment contract set out that he should work an eight and a half hour shift, which included a half hour break for lunch. His employer told him that, in fact, he should work for eight hours without a break, and then leave half an hour early.

The Claimant brought a claim under Section 10 of the Working Time Regulations 1998, arguing that he had been refused a rest break.  The Employment Tribunal held that as he had never asked for a rest break, his employer had not refused to provide him with a break. The EAT overturned this decision on the basis that the instruction to work without a rest break could be construed as a refusal by the employer.  There was no need for an explicit request by the employee.

What does this mean for employers?

This decision is one based on common sense but it clears up some uncertainty caused by previous EAT decisions on this topic.  It is a reality of the working world that some workers will choose not to take their rest breaks and may well not complain about this at the time.  Be wary of this practice becoming embedded or inadvertently encouraged by managers.  This is because problems could arise later down the line if those workers become disgruntled and bring a claim.  It will not be possible to rely on the worker’s apparent ‘free choice’ not to take their breaks as a defence to such a claim.

Employment Tribunal costs – unreasonable conduct costs ordered against a litigant in person

Liddington v 2gether NHS Trust UKEAT/0002/16

The EAT has made a costs order against a litigant in person after she failed to properly particularise her case.

The Claimant was dismissed by the NHS Trust. She brought a claim to the Employment Tribunal complaining that she had suffered a detriment for making a safeguarding referral and was eventually unfairly dismissed. She represented herself throughout. During the proceedings, the Claimant was advised by three different Employment Judges that her claims were not adequately particularised. In particular, she had failed to provide some specific dates which were highly relevant as it appeared that some of the alleged acts of detriment pre-dated her safeguarding referral. An application for costs was made against her by the Trust. In considering this, the Judge accepted that the Claimant was a litigant in person and so should not be held to the standards of a lawyer.  He also found that she was not deliberately trying to be obstructive. Nevertheless, given the number of earlier hearings at which detailed particulars were sought, her continued inability to provide proper particulars amounted to unreasonable conduct which justified a costs award against her.

What does this mean for employers?

This decision is a useful illustration that litigants in person are expected to conduct Employment Tribunal proceedings in a reasonable manner and to respond to and comply with case management orders. The Employment Tribunal landscape has changed enormously over recent years and gone are the days when litigants in person might have got away with riding roughshod over the rules and standards expected of professional representatives.

Tribunals are permitted to give additional support to litigants in person in light of the ‘overriding objective’ of dealing with cases justly which includes (as far as possible) ensuring that the parties are on an equal footing. This case, however, shows that there are limits to the leeway given to unrepresented individuals.

It is also interesting to note that the Judge specifically considered whether the Claimant’s inability to particularise her case adequately was caused by stress, anxiety or illness, and decided that it was not. If stress or illness had played a part it is less likely that a costs order would have been made.