The Employment Appeals Tribunal (EAT) has considered whether compensatory rest has to be taken in one uninterrupted period, or whether a series of short breaks can be accumulated to amount to the mandatory time.

Background

For most workers, rest breaks are governed by Regulation 12 of the Working Time Regulations 1998 (WTR), which provides that where a worker's daily working time is more than six hours:

  • that worker is entitled to take a 20 minute rest break; and
  • the break is to be taken away from their workstation, if they have one.

This is known as a regulation 12 break.

For some special cases of worker, as in the case discussed below, the entitlement to regulation 12 break does not apply. Under regulation 24 of the WTR this class of worker must be allowed:

  • where possible, to take an equivalent period of compensatory rest; or
  • where not possible, offered protection to safeguard their health and safety.

This is known as compensatory rest.

Crawford v Network Rail

Regulation 12 breaks and compensatory rest were scrutinised in the case of Crawford v Network Rail Infrastructure Ltd (UKEAT/0316/16).

In this case, Mr Crawford was employed as a railway signalman by Network Rail. He worked alone during each of his eight-hour shifts, and his role was to continuously monitor his assigned post - a role to which the regulation 12 break did not apply.

The nature of the job meant that Mr Crawford was unable to take any single break of 20 minutes during any shift. As a compromise, he was permitted to take short breaks (of around 5 minutes) which, when combined over the course of a shift, would amount to more than 20 minutes. During any such break however, he was always on call.

Mr Crawford submitted a claim to the employment tribunal alleging that these ad hoc arrangements did not comply with the WTR; he claimed that he was entitled either to a regulation 12 break, or compensatory rest amounting to something equivalent to a regulation 12 break.

The first instance tribunal rejected the claim finding that, because Mr Crawford was able to take several small breaks which would amount to more than 20 minutes during the course of a shift, his arrangement was capable of satisfying compensatory rest in accordance with regulation 24.

Mr Crawford appealed to the EAT.

Decision

Mr Crawford's appeal was allowed.

The question to be determined was whether his arrangement with Network Rail was satisfactory for the purposes of 'an equivalent period' to be considered compensatory rest. In coming to its decision, the EAT referred to the case of Hughes v Corps of Commissionaires Management Ltd [2011] EWCA Civ 1061; in which it was held that being on call during any break would not automatically mean that the break does not comply with compensatory rest requirements. Consequently, in applying this to Mr Crawford's case, the EAT decided that the requirement for Mr Crawford to be on call throughout any break would not be sufficient for him to succeed in his claim.

However, the court of appeal in Hughes did confirm that a rest break would not meet the criteria of 'equivalence' and 'compensation' (for the purpose of compensatory rest) if the break from work did not last for an uninterrupted period of at least 20 minutes. It was on this basis that the EAT found in favour of Mr Crawford, and determined that his arrangement with Network Rail was not adequate to satisfy the requirements of compensatory rest.

The EAT rejected a submission by Network Rail, that the decision in Hughes could be interpreted to mean that the rest break can be an accumulation of different periods throughout a shift, which together amount to 20 minutes or more. The EAT also rejected Network Rail's argument that their system worked better from a health and safety perspective than a system involving a continuous 20 minute break.

Mr Crawford's case highlights a number of important points for employers and poses the greatest risk to those whose roles require a continuous presence and where workers are unable to take statutory breaks or are required to be on call during rest breaks.

A genuine rest break under regulation 12 must be a period of time of not less than 20 minutes, prior to which the employee must be made aware that the period of time is for their own use and during which they will not be disturbed.

A requirement for an employee to be on call during any period of rest will make compliance with regulation 12 impossible, but will not be fatal for it to count as compensatory rest provided that it is not interrupted and is longer than 20 minutes where the employee works for more than six hours.

It is not for employers to decide what is required to satisfy health and safety and whether a worker has had sufficient breaks, it is the length of the individual break which is crucial.

Employers should now be consider reviewing all of their shift patterns and arrangements in order to determine whether staff who are entitled to receive a continuous 20 minute break are in fact receiving that entitlement. Where problems are identified, steps should be taken to make cover available or apply adjustments as may be required.