Health and safety at work - Organisation of working time - Rest breaks

Hughes v Corps of Commissionaires Management Ltd: Court of Appeal, Civil Division (Sir Anthony May, president, Lords Justice Thomas, Elias): 8 September 2011

Regulation 24(a) of the Working Time Regulations 1998, SI 1998/1833 provides, so far as material: Where the application of any provision of these regulations is excluded by regulation 21 or 22, or is modified or excluded by means of a collective agreement or a workforce agreement under regulation 23(a), and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break - (a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest.

The employer provided security guarding services for various clients. The employee, who was employed as a security guard, was assigned to a site (the site) where the employer was providing 24-hour security coverage. His job duties required him to be continuously able to supervise and monitor access to the site. He was provided with a kitchen area where breaks could be taken, but he had to remain on call during those periods.

If his break was interrupted he was permitted to start it again. At other times he would have a complete uninterrupted break, although he could never be sure in advance that that would be the position. The employee complained that that did not comply with the employer’s obligations to provide him with a rest break under the Working Time Regulations 1998, SI 1998/1833 (the regulations). The regulations gave effect to Council Directive EC 93/104, concerning certain aspects of the organisation of working time (the directive).

The regulations provided for minimum rest periods for workers under regulation 12. Before the employment tribunal, the employee accepted that he was covered by the exception to regulation 12 in regulation 21(b), which applied to workers engaged in security and surveillance activities. However, he submitted that he was entitled to compensatory rest breaks pursuant to regulation 24(a) of the regulations.

The employer contended that they had provided an equivalent compensatory rest period by allowing the employee his full rest after his shift had ended. The tribunal rejected that submission and re-listed the case for a hearing to determine whether the employee had been afforded, where possible, an equivalent period of compensatory rest during his working time. The employer appealed to the Employment Appeal Tribunal (EAT), who remitted the case to the tribunal to consider whether the employer could organise the work shifts so as to allow the employee a full 'Gallagher break'; defined in Gallagher v Alpha Catering Services Ltd [2004] All ER (D) 121 (Nov) as, ‘an uninterrupted period of at least 20 minutes which the worker can use as he pleases’.

The tribunal found that there were objective reasons for not providing the employee with a full Gallagher break. In reaching its conclusion, the tribunal made reference to Adeneler v Ellinikos Orgnismos Galkatos [2006] All ER (D) 25 (Jul). The employee appealed to the EAT. The EAT drew a distinction between a Gallagher rest break and an equivalent period of compensatory rest. It concluded that the findings of the tribunal had properly demonstrated that, on the facts, it was not possible for the work to be arranged so as to allow a full Gallagher rest break during the shifts, as it was not known in advance whether the rest break would be interrupted.

However, the EAT was satisfied that the breaks afforded to the employee were an equivalent period of compensatory rest falling within regulation 24(a). The employee appealed.

The principal issues that fell to be determined were whether: (i) the EAT had been wrong to find that the breaks afforded to the employee fell within the terms of regulation 24(a); and (ii) the tribunal had been wrong to find that there were objective factors justifying the failure to provide him with his full Gallagher rest break. In respect of issue one, the employee submitted, inter alia, that any period of compensatory rest had to be a ‘rest period’ as defined in the directive and therefore had to be outside working time; since he had to remain in the workplace and was on call, his break was taken within working time as defined in the directive and could not, as a matter of law, amount to compensatory rest.

In relation to issue two, he submitted, inter alia, that: notwithstanding that the tribunal had stated in terms that it had not been influenced solely by economic factors, nonetheless that was in substance the reason why it had considered that it was impossible for the employers to provide appropriate cover; the tribunal had been wrong to have regard to the meaning of objective grounds as set out by the European Court of Justice in Adeneler, because that case had been concerned with fixed-term contracts whereas the instant case concerned a different directive whose object was to protect health and safety; and the tribunal ought to have particularised in more detail precisely why it was so difficult for the employers to arrange matters so as to ensure an appropriate rest break.

The appeal would be dismissed.

(1) A rest break could not occur within working hours. Under the directive, a rest period was defined as a period which was not working time, and there was no basis for saying that a rest break was somehow different from other rest periods. However, an equivalent period of compensatory rest did not need to be a rest break as defined. If a period was properly to be described as an equivalent period of compensatory rest, it had to have the characteristics of a rest in the sense of a break from work.

Furthermore, it had so far as was possible to ensure that the period which was free from work was at least 25 minutes. If it did not display those characteristics it would not meet the criteria of equivalence and compensation (see [50], [52]-[54] of the judgment). In the instant case, the arrangements had constituted an equivalent period of compensatory rest pursuant to regulation 24(a) (see [48], [54] of the judgment). Gallagher v Alpha Catering Services Ltd (t/a Alpha Flight Services) [2004] All ER (D) 121 (Nov) considered.

(2) In the instant case, maximisation of profits had not been the only reason for failing to provide the requisite cover. Any significant additional cost could have undermined the ability of the employers to secure the contract at all and would have threatened the jobs of the security officers or their pay.

The recitals emphasised that imposing administrative, financial and legal constraints might hold back the creation and development of small and medium-sized undertakings. The tribunal had been fully alive to that consideration and had properly allowed it to enter the equation of whether the reasons had been objectively justified or not. In addition, the tribunal had found that there were logistical and administrative problems which would arise if additional staff had to be employed. That had been a finding of fact, sustainable on the evidence.

On the evidence, the tribunal had not simply lifted the statutory language of Adelener without any consideration of the very different statutory context. Further, the tribunal had explained fully and cogently why it had reached the decision that it had. It had been obvious that the costs of employing extra staff would have added considerably to the overall costs of the contract and in a competitive market would have been bound to jeopardise the employer’s ability to perform it (see [60]-[63] of the judgment).

Adeneler v Ellinikos Organismos Galaktos: C-212/04 [2007] All ER (EC) 82 considered. Decision of Smith J [2011] IRLR 100 affirmed.

David Gray-Jones (instructed by Thomas Mansfield LLP) for the employee. Caspar Glyn (instructed by Simons, Muirhead & Burton) for the employer.