Court of Appeal overturns Working Time ruling on Compensatory Rest

Judgment was handed down today in Network Rail Infrastructure v Crawford [2019] EWCA Civ 269 which has implications for workers who are entitled to compensatory rest.

The appeal concerned the statutory daily rest break provided under the Working Time Regulations 1998 (WTR) for the health, safety and wellbeing of workers.The normal provision for rest during a working day is found in regulation 12 WTR: a worker is entitled to a rest break of an uninterrupted period of not less than 20 minutes away from his workstation (a “Gallagher rest break” after Gallagher v Alpha Catering Services [2005] IRLR 102).However the normal entitlement is excluded for some jobs in a range of sectors – including where (under regulation 21(f)(iii) WTR) the worker works in railway transport and his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.The exclusion also applies to jobs where there is a need for continuity of service or production such as some offshore workers, security guards, hospital, residential, airport, dock or prison workers as well as some of those in media, postal, telecommunications, transport and some public services.

In those excluded cases the employer must (under regulation 24) ‘wherever possible’ allow the worker to take ‘any equivalent period of compensatory rest’ or exceptionally where not possible “such protection as may be appropriate in order to safeguard the worker’s health and safety”.

The core dispute was what ‘equivalent’ meant in this context.Judge Shanks in the Employment Appeal Tribunal ([2018] IRLR 714; [2018] ICR D5) had applied dicta of Elias LJ in Hughes v Corps of Commissionaires [2011] IRLR 915 to hold that compensatory rest under regulation 24 WTR must be a 20 minute uninterrupted rest break in order to be equivalent.Network Rail required its signallers in remote locations to take numerous short breaks that aggregated to well in excess of 20 minutes, but did not send a relief worker so that they could take 20 minutes of continuous break.It argued that equivalent did not mean ‘the same’ and appealed to the Court of Appeal.

Underhill LJ pointed out that (as Hughes itself noted) ‘equivalent’ cannot be intended to import the identical obligation to a Gallagher break, but “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”. The Court of Appeal held that whether the rest afforded is equivalent is a matter for the employment tribunal and there was no basis to say that only an uninterrupted break of twenty minutes should afford an equivalent benefit.A collective or workforce agreement might make some different arrangement – e.g. two uninterrupted breaks of 15 minutes or something similar to the Network Rail guidance about numerous aggregated breaks.

The Tribunal had found that Mr Crawford, a Network Rail relief signaller stationed at single-manned, less busy signal boxes had numerous opportunities to take discontinuous breaks that aggregated to well in excess of 20 minutes a day.Network Rail was right to protect the health and safety of him, other workers and customers by requiring him to take numerous naturally occurring breaks between periods of activity.The Tribunal noted that between periods of signalling activity he could leave his workstation to go out onto the balcony, or go to the toilet or to the kitchen and that these breaks were equivalent or better than one 20 minute break.

The Court of Appeal upheld the Tribunal’s ruling, noting that the Working Time Directive does not itself specify the characteristics of the breaks provided for, not even their minimum duration: that is left to agreement at the industrial level or, “failing that”, national legislation.This reflects a realistic recognition that what kinds of break are most likely to promote the well-being of the worker and fit with the reasonable needs of the employer is likely to vary enormously across the world of work.Employers should have health and safety in mind when arranging compensatory rest breaks for workers who cannot take standard breaks due to the need for continuity of service or production.

Andrew Burns QC appeared for Network Rail instructed by Eversheds Sutherlands LLP.

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