What claims can be brought under the Working Time Regulations 1998?

The Working Time Directive is part of EU law and was incorporated into the law in Great Britain via the Working Time Regulations 1998 (WTR). These Regulations set out various rights, including the rules on holidays, rest breaks, night work, etc for young workers and adults. They also allow employees (including workers) to bring claims before an employment tribunal (ET) if those rights are breached, under Regulation 30 of the WTR, or if they suffer a detriment or dismissal as a result of raising a concern about working time, under the Employment Rights Act 1996 (ERA). These claims should generally be brought within three months of the breach occurring.

Below, we look at the various claims that can be brought in relation to working time.

Rest breaks

The rules on rest breaks are found in Regulations 10–13A in the WTR. Adult workers are entitled to:

• at least 24 hours uninterrupted rest in every seven-day period, which can be averaged out over a 14-day period
• at least 11 consecutive hours rest in every 24-hour period.
• an unpaid 20-minute uninterrupted rest break in any shift that lasts for over six hours
• not work more than 48 hours in one week, unless they have signed an opt-out.

Different rules apply to young workers under 18 but over school leaving age (around 16). The WTR do not apply to children under school leaving age.

A claim can be brought under Regulation 30 where an employer has “refused to permit” the individual to exercise their right to a rest break.

This was dealt with in Grange v Abellio London Ltd. There, the Employment Appeal Tribunal (EAT) suggested that employers must take active steps to ensure that working arrangements enable workers to take the requisite rest breaks. Although workers cannot be forced to take rest breaks, they are to be positively enabled to do so. A “refusal” to permit rest breaks under the WTR, therefore, includes where the employer fails to make provision for such breaks; it is not restricted to only situations where an employer refuses a request for a break. In effect, this places an explicit duty on employers to permit rest breaks.

When deciding on these claims, ETs must consider both the employer’s default in refusing to permit the employee to exercise that right but also any loss that the employee has suffered as a result. The compensation, however, is not intended to be punitive. For example, in Grange, the employee was awarded £750 in compensation for the breach.

One issue that complicates the failure to provide rest breaks is that of compensatory rest under Regulation 24. This is available in limited circumstances and it allows specific categories of workers, such as shift workers, to be given less than their statutory daily and weekly rest break, with the missing part of the rest break to be given at another time, unless exceptional circumstances apply and there are objective grounds for that rest not to be taken. Following the European Court of Justice decision in Landeshauptstadt Kiel v Jaeger [2003], it is generally accepted that this rest should “follow on immediately from the working time which they are supposed to counteract.”

Where an individual falls within the exemptions in the WTR that allow compensatory rest, it could be difficult for them to successfully argue their employer had refused to permit their rest break, especially where the employer can present objective grounds for doing so. Regulation 24, however, does require in circumstances where compensatory rest is not allowed that employers afford the employee “such protection as may be appropriate in order to safeguard the worker’s health and safety.”

Holiday claims

Employees can bring an ET claim if their employer refuses to permit them to exercise a right under Regulations 13, 13A, 15B or 15D, which include the right to annual leave and carry-over of that leave. Claims can also be brought where an employer has failed to pay holiday pay; however, more often than not this claim is brought as an unlawful deduction of wages claim under the ERA — this is generally more effective.

The same rules apply to these claims regarding time limits and compensation as has already been sent out under Rest breaks.

One area in which cases have arisen in relation to failure to permit holiday is where a worker has been misclassified as self-employed and denied the right to take paid holiday under the WTR. This was dealt with in cases such as Smith v Pimlico Plumbers Ltd [2022]. Since 1 January 2024, when the WTR were amended as a result of the UK courts no longer being bound to follow EU law post-Brexit, the carry-over rule found in Pimlico is now on a statutory footing in Regulations 13(16–18) of the WTR.

Other claims

The WTR also give employees the right to bring claims in cases where they have suffered a detriment or automatic unfair dismissal where they have:

• refused (or proposed to refuse) to work longer than the prescribed limits on working time, or during rest breaks of when it would mean forgoing annual leave
• not signed a workforce agreement or failed to enter, vary or extend any other agreement under the WTR (such as an opt-out agreement)
• brought proceedings to enforce a right under the WTR or alleged in good faith that their employer had infringed such a right.

These cases would be brought under the ERA, not the WTR, even though they relate to the rights under those Regulations.

Looking to the future

It’s not possible to tell from the published list of ET statistics what the actual claims were under the Working Time Directive heading but it’s clear those claims are on the rise. Employers who want to avoid such claims being brought against them must ensure their staff are given their minimum statutory rights under the WTR, or face action.

Currently, the Health and Safety Executive (HSE) and local authorities have limited responsibility for enforcing certain rights under the WTR but this does not include the general requirements of rest breaks (save for where the employee is doing monotonous work under Regulation 8 of the WTR) and holidays. To enforce those rights, it is down to individuals to pursue claims before an ET.

This is set to change under the Employment Rights Bill, which is currently being considered by Parliament. It includes provision for a new single enforcement body, the Fair Work Agency, to be established. This will have enforcement powers in relation to many employment rights, including those under the WTR. Under the Bill, as it is currently, this agency will be able to bring claims on behalf of employees before the ET, which could result in a further increase in the number of claims going before an ET