'Compensatory rest' periods must be given in 20-minute continuous blocks of time and cannot be offered piecemeal

Fairness of Dismissal and Knowledge of a Protected Disclosure

In a recent decision that will concern all employers, the Employment Appeal Tribunal (‘EAT’) clarified the meaning of ‘equivalent period of compensatory rest’ under Regulation 24 of the Working Time Regulations 1998 in Crawford v Network Rail Infrastructure Ltd. and held that an employer must provide workers with a 20 minute period of continuous rest for every 6 hours worked.

 

Background

The Claimant, Mr D. Crawford, was a railway signalman who worked from different one-manned signal boxes over the course of an 8 hour shift. 

Due to the nature of his job, Mr Crawford was exempt from Regulation 12, which entitles all workers to a 20 minute period of rest for every 6 hours worked, by virtue of Regulation 21.   Regulation 21 provides an exemption for workers where ‘continuity of service’ is paramount, such as in the railway industry.  Mr Crawford fell within the exemption and as a result Regulation 24 applied.  This entitled him to take an equivalent period of compensatory rest wherever possible.

Mr Crawford argued he was not being given the ‘equivalent period of compensatory rest’ by his employer.  During the course of his shift, Mr Crawford was given several short breaks which totalled more than 20 minutes, however none were 20 minutes on their own.  Furthermore, although there were quieter periods at certain points during the shift (giving Mr Crawford the opportunity to take a short break), he could not switch off from work entirely as he was always technically on call.

Decision

At first instance, the Employment Tribunal (‘the ET’) rejected the claim.  The ET held that Mr Crawford had not raised any objections to his employer, therefore the employer had not had the opportunity to resolve Mr Crawford’s concerns.  The ET also held that ‘piecemeal breaks’ were acceptable; although it was noted that the provision of a relief worker would have achieved the goal of allowing Mr Crawford to have a 20 minute break.  Mr Crawford appealed the decision.

The EAT allowed the appeal.  It was held that as per Hughes v Corps of Commissionaires Management Ltd (No.2) 2011, an ‘equivalent period of compensatory rest’, should be a continuous period of 20 minutes.  The provision of several shorter breaks, which cumulatively are 20 minutes or more, was not an acceptable work around.

Comment

The EAT’s decision shows that the crucial element is that there is a single continuous break of at least 20 minutes.  Here, the provision of a relief worker would have allowed Mr Crawford to have a continuous break, which led the EAT to find in Mr Crawford’s favour. 

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Natasha Parikh, Hannah Ford

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