Rest breaks under the Working Time Regulations (WTR)
15 January 2018
Law firm Pinsent Masons warns employers that roles requiring continuous presence pose the greatest risk when workers are unable to take a statutory 20 minute break.
Pinsent Masons has written about the case Crawford v Network Rail Infrastructure Ltd which looks at the requirements of the Working Time Directive (WTR) for rest breaks when workers are unable to take a statutory 20 minute break.
“Mr Crawford (C) is a railway signalman, working for Network Rail (N). He works on single-manned signal boxes, and the signals require continual monitoring. In practice, C is able to take short breaks from the signals. Over the course of his eight-hour shift, the breaks were substantially more than the 20 minutes rest break provided for in the Working Time Regulations 1998 (WTR). However, during day-time shifts a continuous 20 minute break was not possible, and he was required to be on call during any breaks he did take.
The WTR specify, under reg.12(1) :- "where an adult worker's daily working time is more than six hours, he is entitled to a rest break", which, under reg.12(3) must be not less than 20 minutes and allow the worker to be away from his work station. However, in the case of railway workers, reg.12 is replaced with reg.24 which provides for the employee to be provided with "an equivalent period of compensatory rest".
C brought a claim to ET stating that he was entitled to a 20 minute rest break under reg.12, or compensatory rest under reg.24. N argued that C's breaks added up to more than 20 minutes over the course of a day, and that this was preferable from a health and safety point of view. The ET found that C had not requested or been refused a 20 minute rest break, and in any event, the short breaks he was able to take were compliant with the requirement to provide compensatory rest, although it did state that N could roster breaks and provide a relief signaller.
C appealed, and the EAT has allowed his appeal. It cited the only authority on the meaning of reg.24(a), Hughes v The Corps of Commissionaires Management Ltd, a decision of the Court of Appeal. Mr Hughes was a security guard working alone, who was allowed breaks from his desk, but was always on call. The judge commented in Hughes that "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 EAT in Crawford noted that whilst the "mere fact" that C was on call did not mean adequate compensatory rest was not provided, as far as possible the compensatory rest break should be at least 20 minutes, and if it is not then it is not "an equivalent period of compensatory rest". There were shifts where C was required to work where there was no opportunity for a continuous 20 minute break, and it would be possible for N to provide a relief signaller to allow one. Reg.24(a) was therefore not satisfied on those shifts, and N was in breach of its obligations under the WTR."
Comment from Pinsent Masons
The EAT noted that "the length of the individual break is crucial", therefore there is no scope for an employer to look at this in the round and assess that overall the employee has sufficient breaks. This decision may well have practical implications for those employers where staff may be required to be on call during a rest break, and unable to take a continuous 20 minute rest break.
Trade Unions will be alert to this decision and employers would be well advised to take stock of working patterns now with a view to identifying those that do not receive a continuous 20 minute rest break. Roles requiring continuous presence pose the greatest risk e.g. security, quality control, engineering and maintenance etc. Once identified, alternative break patterns should be considered prior to any challenge arising.
With thanks to Pinsent Masons for providing this useful summary.