REST IN PEACE

The Corps Of Commissionaires Management Ltd v Hughes

The aim of the 1998 Working Time Regulations (WTR) is to protect workers’ health and safety and, as such, provides entitlement to rest breaks. In The Corps Of Commissionaires Management Ltd v Hughes, the Employment Appeal Tribunal (EAT) said that the reference to “a rest break” after six hours was an entitlement to one break only irrespective of the number of hours worked over and above that.

Basic facts

Mr Hughes started work as a security guard for Commissionaires Management on 12 September 1994. On 23 June 2006 he lodged a grievance claiming that he was entitled to rest breaks and compensatory rest periods under the WTR. The company told him in October that his grievance had not been successful and he lodged a tribunal claim the following June.

Relevant law

Regulation 12 states that “where a worker’s daily working time is more than six hours he is entitled to a rest break”. If there is no collective agreement or workforce agreement in force (as in this case), the rest break must be for an uninterrupted period of not less than 20 minutes.

Regulation 21, however, states that workers “engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons” are not covered by these provisions. Instead, they are entitled under regulation 24 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”.

Tribunal decision

The tribunal decided:

i. that compensatory rest was not met during rest periods to which Mr Hughes was already entitled
ii. that his case should be relisted to decide whether the company had provided him with an equivalent period of compensatory rest and, if not, whether it was liable to pay him compensation
iii. that the compensation was limited to the three month period before his claim form was lodged on 6 June 2007

The company appealed against the first two points, arguing that as his activities as a security guard required his permanent presence it was not possible, for objective reasons, to grant compensatory rest. Mr Hughes appealed against the third point.

EAT decision

The EAT decided that:

• The reference to “a rest break” in regulation 12 meant that the entitlement was to one break, and was only triggered when a worker did more than six hours work. Mr Hughes was not, therefore, entitled to two breaks if he worked for 12 hours
  Although the company required the “permanent presence” of a security guard this did not mean it had to be Mr Hughes, someone else could carry out those functions while Mr Hughes was taking his compensatory rest break.
  It was not enough to say that he could rest between shifts as this was what he was entitled to in any event, and it did not “compensate” him for the loss of the rest period. To do so would thwart the purpose of the regulations, if groups of workers such as security guards were excluded from any form of compensatory rest. Furthermore, it was not appropriate to conclude that there were no steps which could be taken to protect Mr Hughes’ health and safety.
  Finally, as to the period when a claim for compensatory rest can be made, this was remitted back to the tribunal to decide if the statutory dispute resolution procedures extended this from three to six months.