The Working Time Regulations 1998 (WTR)
Regulation 12 of the WTR states that all workers are entitled to an uninterrupted rest break of at least 20 minutes if their daily working time exceeds 6 hours and they are entitled to spend it away from their workstation.
Regulation 24 states that where a worker is excluded from these provisions (e.g. public transport, medicine, security workers etc.) or by a collective/workforce agreement and is required to work during a period that would otherwise be a rest break, their employer must allow them an “equivalent period of compensatory rest”.
Mr Crawford was a railway signalman working on single manned signal boxes on eight hour shifts. Usually six trains passed Mr Crawford’s signal-box every hour and so he was unable to take an uninterrupted break of 20 minutes during his 8 hour shifts. He was required to be “on call” on any breaks he did take.
Network Rail told Mr Crawford that he could instead take shorter breaks during his shifts “between periods of operational demand”. Together these shorter breaks would add up to more than 20 minutes.
In some regions Network Rail provided a relief signaller (who travelled between signal boxes) to allow signallers an uninterrupted break of at least 20 minutes. There were no relief signallers in Mr Crawford’s region.
Employment Tribunal decision
Mr Crawford brought a claim for an alleged breach of the WTR. He stated that he was entitled to a 20 minute rest break under regulation 12 or compensatory rest under regulation 24 of the WTR.
Network Rail argued that Mr Crawford’s breaks added up to more than 20 minutes over the course of a day and that this was better from a health and safety point of view.
The Tribunal found in Network Rail’s favour. They concluded that Mr Crawford had neither requested nor been refused a 20 minute rest break and the short breaks he was able to take when added together were compliant with the requirement to provide compensatory rest. The Tribunal added though, that Network Rail could have rostered breaks and provided a relief signaller. Mr Crawford appealed.
Mr Crawford’s appeal was allowed.
The EAT cited the only authority on the meaning of regulation 24(a) was the Court of Appeal decision in Hughes v The Corps of Commissionaires Management Ltd. In this case Mr Hughes was a security guard working alone, who was allowed breaks from his desk, but was always on call. In Hughes the judge commented:
“if a period is properly to be described as an equivalent period of compensatory rest, it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible, ensure that the period which is free from work is at least 20 minutes”.
The fact that Mr Crawford might be “on call” would not necessarily mean that the break cannot comply with the compensatory rest requirements. If for example he was interrupted on his break but was able to go back and restart his break for a full 20 minutes, this would be compliant.
Specifically the EAT rejected Network Rail’s argument that a 20 minute period of compensatory rest could be made by adding up various shorted periods of time. It held that compensatory rest must, as far as possible, amount to a single break from work that lasts at least 20 minutes.
As there were some shifts where Mr Crawford was required to work where there was no opportunity for a continuous 20 minute break, and as it was possible for Network Rail to provide such a break by providing a relief signaller as happened in other regions, regulation 24 was not satisfied on those shifts. Therefore Network Rail was in breach of its obligations under the WTR.
What does this mean for you or your business?
- Only those in specific sectors are entitled to compensatory rest but the principle of an uninterrupted break where a worker is not working applies to all workers.
- There is no scope for an employer to aggregate shorter breaks when assessing if a worker has had sufficient breaks.
- There may be practical implications where workers may be required to be on call during a rest break and unable to take a continuous 20 minute rest break.
- If an employee is sitting at their desk and asked to pick up the phone whilst they are on their lunch, the clock for the 20 minute break technically needs to restart.
What do you need to be doing now?
- It is important to consider workers’ entitlement to rest when designing break and shift arrangements in order to avoid potential employment tribunal claims.
- It is important to identify any working patterns that do not allow a continuous 20 minute rest break. Roles requiring continuous presence pose the greatest risk such as security, quality control, engineering and maintenance. If any non-compliant working patterns are identified alternative break patterns should be considered before any challenge arises.
- Encourage workers to leave their desks and go somewhere else for their break so there is no chance of interruption.