In the case of Commissionaires Management v Hughes, the Employment Appeals Tribunal (EAT) has considered questions relating to rest breaks and compensatory rest under the Working Time Regulations (WTR).

Regulation 12 WTR entitles a worker to a daily rest break of 20 minutes if they work for longer than six hours. Workers engaged in "security and surveillance activities requiring a permanent presence" are exempt from the rest break provisions. They are treated as a special case under Regulation 24 and must be provided with an equivalent period of compensatory rest or, where that is not possible, such protection as is appropriate to safeguard the worker's health and safety.

It was common ground that Mr Hughes was a "special case" covered by Regulation 24 of the WTR. He was always required to work during the period that would otherwise have been a rest break and was not paid for any compensatory rest by the employer.

The EAT held that:

  • a worker's entitlement to a daily rest break is only triggered if their daily working time is more than six hours. Therefore only one compensatory break is required per day even if the worker has worked in excess of six hours;
  • if the rest break cannot be taken at the correct time, compensatory rest must be offered during normal working hours; and
  • whether a worker should be paid for compensatory rest is a matter to be agreed between employer and employee.

Impact on employers

Although it is clear from the wording of the legislation, it is useful to have confirmation that only one 20-minute rest break per day is required and that a fresh entitlement does not arise for every 6 hours worked. The more contentious point from an employer's perspective is the requirement for compensatory rest to be given over and above the rest granted between shifts, in what would otherwise be working time. The question of whether it was possible to grant such compensatory rest and if so how Mr Hughes employer could provide appropriate protection for health and safety has been remitted to a fresh tribunal.