TAKE A BREAK

The Corps Of Commissionaires Management Ltd v Hughes

The 1998 Working Time Regulations (WTR) provides for periods of “compensatory rest” for those not entitled to rest breaks. In The Corps Of Commissionaires Management Ltd v Hughes, the Employment Appeal Tribunal (EAT) said that employers who satisfied the “requirements of equivalence and compensation” under the WTR would satisfy the requirement for compensatory rest.

Basic facts

Mr Hughes was a security guard working 12-hour shifts. He was allowed to take a rest break whenever he wanted, as long as he left a telephone number where he could be contacted.

There was therefore no guarantee he would not be disturbed during his break, although if he was interrupted he was allowed to start it again.

He claimed that this arrangement was in breach of regulation 24 of the 1998 Working Time Regulations.

Relevant law

Although regulation 12 gives workers the right to a rest break if their daily working time is more than six hours, regulation 21 (other special circumstances) includes security workers.

Instead, they are entitled under regulation 24(a) to “an equivalent period of compensatory rest” and in “exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest”, employers must provide workers with “such protection as may be appropriate in order to safeguard the worker’s health and safety” under regulation 24(b).

Tribunal decision

Relying on the case of Gallagher v Alpha Catering Services, the tribunal said that the breaks did not qualify as compensatory rest periods because Mr Hughes could not use them as he pleased and there was no guarantee they would not be interrupted.

However, it then went on to say that the employer did not breach the regulations as they satisfied the requirement under section 24(b) to provide him with protection in order to safeguard his health and safety.

EAT decision

And the EAT agreed, but for different reasons. It said that the breaks did qualify as “an equivalent period of compensatory rest” under regulation 24(a). As Mr Hughes was allowed a 20-minute break and was compensated for any potential interruption by being allowed to start his break again, the company had satisfied the “requirements of equivalence and compensation” under the WTR.

This, however, was not the same as a “Gallagher” rest break. Instead the objective was to make up for the fact that the worker had not received his break by providing one that was as near in character, quality and value to a “Gallagher” rest break as possible. It was not possible to stipulate exactly what that might consist of as that would depend on the facts of the individual case, but the EAT was satisfied that this interpretation of 24(a) was in accordance with the EU Working Time Directive.

It then went on to say that there was an expectation under regulation 24 that employers would be able to find some way of providing “an equivalent period of compensatory rest”. However, on the odd occasion when they could not, then 24(b) would come into play. The use of the word “exceptional” implied that these cases would be out of the ordinary and cover circumstances “where no paragraph 24(a) rest can possibly be provided during the shift”.

The employer would then have to provide “appropriate” protection to safeguard the worker’s health and safety. That was wide enough to encompass not only rest periods under 24(a) but also “other measures ranging from the way in which the work is organised during the shift to health checks for workers”.