Overview

In an unreported case, an employment tribunal has held that a care service provider was in breach of the Working Time Regulations 1998 (WTR 1998) for not incorporating daily rest breaks and daily rest periods into a support worker’s shift pattern and by failing to offer compensatory rest when the support worker was denied the rest he was entitled to.

The Law

Regulations 12(1) and 12(3) of the WTR 1998 state that an adult worker is entitled to a rest break of not less than 20 minutes where his/her daily working time is more than six hours.  Although the nature of a rest break is not defined in the WTR 1998, it is widely accepted to be a period of time which is free from the obligation of work.  Furthermore, a period of “downtime” cannot retrospectively be regarded as a rest break on the basis that it lasted 20 minutes, it must instead be identified in advance (Martin v Southern Health and Social Care Trust [2010] IRLR 1048).

In addition to a daily rest break, an adult worker is also entitled to a rest period of 11 consecutive hours per day under Regulation 10(1) of the WTR 1998.  

Regulation 21(c)(i) of the WTR 1998 provides an exception to the obligation to provide daily rest breaks and daily rest periods where the worker’s activities involve the need for continuity of service or production, for example, services relating to the reception, treatment or care provided by hospitals or similar establishments or residential institutions.

Where an exception applies, an employer must, wherever possible, allow the worker an equivalent period of compensatory rest (Regulation 24 of the WTR 1998). Where, in exceptional cases, this is not possible for “objective reasons”, the employer should grant the worker “such protection as may be appropriate in order to safeguard the worker’s health and safety”.

Background

The Respondent care home employs approximately 150 staff together with 25-26 managers who provide 24 hour round the clock care to its service users.  The Claimant, Mr Hood, was employed by the home to work 37.5 hours per week on a shift system as a personal domiciliary support worker.

Mr Hood claimed that there were a number of occasions when he had not been permitted to take a rest break and that he had not been granted a full daily rest period of 11 consecutive hours by the home on an average of 3-4 times per month in the period May 2012 to May 2013.

The home’s staff handbook stated that rest breaks were not to be taken from a shift. Whilst support workers were able to have a cup of tea or watch television with a service user, they were not able to take rest breaks away from the service user.

Employment Tribunal

At tribunal, the home argued that consideration should be given to the fact it would be uneconomical to provide support to cover the few occasions each month that Mr Hood was not granted his daily rest period.  As the home has to provide a constant provision of care to its service users, it claimed that Regulation 21(c)(i) excluded its support workers from their entitlement to daily rest periods and daily rest breaks.

The tribunal agreed that the service the home provides to its service users falls into the category of services set out in Regulation 21(c)(i). However, Mr Hood had not been offered compensatory rest periods.

The tribunal found it difficult to understand why the home could not organise shifts so as to allow daily rest periods to be given to its employees.

As the home allowed employees who smoke to take a break during their shift and for that break to be covered by a manager, the tribunal held that a manager could also cover a rest break. The tribunal’s view was that a rest break could easily have been incorporated into workers’ shifts.  The tribunal noted that rest breaks take on added importance for support workers due to the pressures and difficulties they commonly face in their role.

The tribunal was satisfied that Mr Hood was entitled to a declaration that the home had failed to provide daily rest breaks and rest periods.

Commentary

This case serves as a timely reminder to care providers as regards workers’ entitlements in relation to rest breaks and rest periods.

Wherever possible, we would recommend that:

  • rest breaks are scheduled into the working time of employees
  • shifts are organised so as to allow daily rest periods
  • employees are not put under pressure to forego rest breaks (this being of particular importance in respect of support workers)
  • an atmosphere is created in which rest breaks are observed and respected by management and
  • records are kept in order to demonstrate that rest breaks and rest periods have been taken by employees (and compensatory rest has been provided if necessary).