The claimant, a railway signalman, worked eight-hour shifts on single manned boxes. He had no rostered breaks but was expected to take them when the opportunity arose while remaining on call. Although none of his individual breaks lasted the 20 minutes that he claimed he was entitled to under regulation 12 or, pursuant to regulation 21(f)(iii), under regulation 24 of the Working Time Regulations 1998, together they added up to more than 20 minutes. An employment judge dismissed his claim that his employer had failed to provide him with rest breaks or compensatory rest, in breach of the Regulations, on the ground that the employer had acted in accordance with its guidance document for signalmen at single manned locations, which permitted 20-minute breaks to be an aggregate of shorter breaks and that the arrangements complied with regulation 24(a). The Employment Appeal tribunal allowed his appeal on the grounds that it was bound to hold that a period of rest could not be “equivalent” for the purpose of regulation 24 unless it was an uninterrupted period of at least 20 minutes: the aggregation of discontinuous shorter periods did not satisfy the requirements of the regulation.
On the employer’s appeal—
Held, Appeal allowed. In deciding whether it was necessary as a matter of law for an “equivalent period of compensatory rest” within the meaning of regulation 24(a) to consist of an uninterrupted 20 minutes, the starting-point must be that regulation 24 was only engaged because the Working Time Regulations 1998, as amended, following Council Directive 2003/88/EC, provided that in the case of the kinds of work identified in regulation 21 an employer was not required to afford workers rest breaks satisfying the requirements of regulation 12. That being so, the description of the compensatory rest required under regulation 24(a) as “equivalent” could not be intended to import the identical obligation that would have applied under regulation 12. Rather, the intention must be that the rest afforded to the worker should have the same value in terms of contributing to his or her well-being. Whether the rest afforded in any given case was “equivalent” must be a matter for the informed judgment of the (specialist) employment tribunal. There was no basis in principle for the proposition that only an uninterrupted break of 20 minutes could afford an equivalent benefit in that sense; and the provision for a collective or workforce agreement to make some different arrangement would be meaningless if that were so. There was no reason why a single uninterrupted break of 20 minutes would always be better than, say, two uninterrupted breaks of 15 minutes one-third and two-thirds through the shift. If, uninterrupted breaks were not necessary, it was indeed “possible” to allow the claimant to take an equivalent period of compensatory rest. The Employment Appeal Tribunal was wrong to allow the appeal on the basis that it did (paras 42–44, 47, 48, 51, 53, 54, 55).
Hughes v Corps of Commissionaires Management Ltd [2011] IRLR 915, CA considered.
Decision of the Employment Appeal Tribunal [2018] ICR D 5, EAT reversed.
Andrew Burns QC (instructed by Eversheds Sutherland llp, Leeds) for the employer.
Naomi Ling and Elizabeth Grace (instructed by Thompsons Solicitors) for the claimant.