On call break
Labour & European Law Review Weekly Issue 241 27 October 2011
Under the 1998 Working Time Regulations (WTR), security workers are exempt from the right to a rest break, but are entitled to an equivalent period of “compensatory rest”. In Hughes v The Corps of Commissionaires Management Ltd, the Court of Appeal said that a period of “compensatory rest” could still qualify as a rest break, even if the security worker remained on call and could be interrupted.
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 WTR.
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) excludes security workers “engaged in security and surveillance activities requiring a permanent presence...",
Instead, they are entitled under Regulation 24(a) to “an equivalent period of compensatory rest” and when that is not possible, in exceptional cases, to “such protection as may be appropriate in order to safeguard the worker’s health and safety” under Regulation 24(b).
Tribunal and EAT decisions
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 in advance they would not be interrupted.
However, it then went on to say that the employer had not breached the Regulations as they satisfied the requirement under section 24(b) to provide him with protection in order to safeguard his health and safety.
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.
Compensatory rest did not have to satisfy all the requirements of Gallagher - it just had to be as near as possible in character, quality and value.
Court of Appeal decision
The Court of Appeal (CA) agreed with the EAT. It held that the phrase “equivalent period of compensatory leave” just gave workers the right to a break of a similar length at some other time. It took the view that it was better for the worker’s health and safety to have a rest break which could be interrupted (and restarted), than a Gallagher break which they might only be able to take much later.
But for a break to be described as an equivalent period of compensatory rest, the Court made clear that it must have the characteristics of a rest in the sense of a break from work. And should, ideally, last for at least 20 minutes (as it did in this case).
If an employer could not offer a Gallagher break, but came as close as possible to replicating it, it was irrelevant whether paragraph 24 (a) or (b) was applicable. If it didn’t fall within (a), said the Court, it would be more or less bound to fall within (b).
A key factor influencing the CA’s decision was the finding that Mr. Hughes could in practice restart his break if it was interrupted and might therefore end up with more rest time (even though he was still on call during it), than if he were restricted to a 20 minute break away from the workplace.
The CA was also heavily influenced by the potential cost to the employer of providing security cover during the rest break, as well as the logistical difficulties of doing so. It held that employing extra staff would add significantly to the cost of the contract and in a competitive environment would be bound to jeopardise the employer’s ability to perform it.
The danger with this approach is that it institutionalises working practices that conflict with rights under the WTR, since every employer who competes for these contracts would then need to operate similar practices in order to have a chance of winning them. It is to be hoped that this case will be confined to its particular facts.