18 March, 2019
The Court of Appeal held in Network Rail Infrastructure Ltd v Crawford, that where the normal entitlement to an uninterrupted 20-minute rest break under Reg 12(1) of the Working Time Regulations 1998 ("WTR") is excluded by a 'special case' exemption, the equivalent period of compensatory rest that the employer must give wherever possible under Reg 24(a) need not be an uninterrupted 20-minute break.
The Claimant's job was to provide relief cover for a number of railway signal boxes, generally on an eight-hour shift pattern. Network Rail guidance confirmed that as signallers' work was intermittent "at single-manned locations, breaks must be taken between periods of operational demand where there are opportunities for 'naturally occurring breaks'". Accordingly, it was envisaged that the 20-minute break may be an aggregate of shorter breaks over the course of the shift.
In February 2014, the Claimant raised a grievance in relation to the provision of compensatory rest breaks. A Network Rail investigation found that there were sufficient, naturally occurring breaks, to enable signallers to take compensatory rest and that there was no need to provide for a formally rostered rest break which would require cover by another signaller.
The Claimant then brought an employment tribunal claim asserting that the Respondent had refused to provide him with rest breaks under the WTR. He asserted that although as a railway transport worker he was excluded from right to an uninterrupted rest break of at least 20 minutes, the Respondent was required to allow him to take 'an equivalent period of compensatory rest' or (where that is not possible) to afford him 'such protection as may be appropriate' in order to safeguard his health and safety. The Employment Tribunal ("ET") rejected the claim, finding that the Claimant had been permitted, and indeed encouraged, to take compensatory rest breaks.
The Claimant subsequently successfully appealed to the EAT who held that in order to be compliant with the WTR, the compensatory rest must (as far as possible) amount to an uninterrupted break from work that lasts for at least 20 minutes. Allowing the Claimant to take a number of shorter breaks throughout his eight-hour shift did not amount to the provision of equivalent compensatory rest under the WTR.
The Respondent then appealed to the Court of Appeal who allowed the appeal and restored the ET's decision. The description of compensatory rest as 'equivalent' in Reg 24 of the WTR for excluded workers could not be intended to import the identical obligation that would have applied under Reg 12. The intention must be that the rest afforded should have the same value in terms of contributing to his or her well-being. As to whether the rest was 'equivalent' was a matter for the informed judgment of the specialist employment tribunal. Although it was feasibly possible for the Respondent to organise an uninterrupted 20-minute break by means of a relief signaller, the WTR did not oblige the Respondent make that arrangement. Once it is established that a period of compensatory rest under Reg 24 need not be identical to a Reg 12 rest break, it becomes irrelevant that such a break could in fact have been provided.
The clarification from the Court of Appeal is welcome for employers of employees subject to the special case exemption. Whilst the Court states that the specific factual circumstances will be a matter for tribunal consideration, it is clear that there is no need for a continuous period rest period for this class of employee. And the fact that alternative provision could be made will not necessarily lead to an obligation to provide continuity.
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