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Rest breaks must be uninterrupted

31st January 2018

A common question we get asked about the right to rest breaks is whether the legal minimum entitlement of 20 minutes rest break can be fulfilled by the worker taking a number of smaller breaks which then add up to 20 minutes in the course of their working day. The legal minimum daily rest break of 20 minutes applies if the worker’s daily working time is more than 6 hours. We all have those days when it seems impossible to find the time to take a break, let alone an undisturbed break of at least 20 minutes.

The law appears to be clear that the 20 minutes rest break entitlement does not enable employers to require their workers to take the full “break” at the start or end of their working day (effectively producing a later start or an earlier finish time for the worker). The cases indicate that the break must be taken at some point during the working day. However, how should you deal with the situation where the employer enables the worker to take say four, five- minute breaks in the day, but not a single block of a 20 minutes break? The Employment Appeals Tribunal has recently given a ruling which is likely to answer this question.

The case of Crawford v Network Rail Infrastructure Ltd dealt with the interpretation of Regulation 24 of the Working Time Regulations 1998. This particular Regulation provides that a worker has the right to an “equivalent period of compensatory rest” if they had not had the opportunity to take the normal 20 minutes daily rest break. The main regulation that gives the right to a 20 minutes rest break is Regulation 12 of the Working Time Regulations 1998. The reason why this case took a slightly different look at the issue comes from the fact that Regulation 21 states that the provision of Regulation 12 does not apply to railway transport workers whose activities are linked to ensuring the continuity and regularity of traffic. However, Regulation 24 then goes on to state that those workers that are not covered by Regulation 12 are entitled to take “an equivalent period of compensatory rest” or to be given “such protection as may be appropriate.”

Mr Crawford worked as a relief cover signalman, working at various signal boxes across the South East of England, working 8- hour shifts. All but one of the boxes he worked at were single manned- which clearly presents a problem if he needs a break. While Mr Crawford was not busy throughout every shift, he was of course required to continuously monitor, and be available to carry out the necessary tasks when trains were passing through. During many day shifts it was not possible for Mr Crawford to take an uninterrupted break of 20 minutes.   It was accepted that during the course of a shift it could be possible to take a number of short 5 minutes breaks, which when added together would exceed the requirement of 20 minutes break. The argument that Network Rail put was that this enabled Mr Crawford to take the 20 minutes break time during each shift. They also argued that taking breaks in this manner was actually better for Mr Crawford from a health and safety point of view.

At the original hearing in the Employment Tribunal, Mr Crawford’s claim that the company was not meeting the obligation under Regulation 24 was rejected. The Employment Tribunal ruled that Mr Crawford had been allowed to take compensatory rests. It also noted that he had not requested, and so had then not been refused, any different arrangements. The Tribunal noted that it would not have been possible for the company to organise a relief signaller to go between all the required signal boxes and provide them with an uninterrupted 20 minutes break. Mr Crawford appealed against that decision to the Employment Appeals Tribunal (the EAT).

The EAT allowed the appeal. It referred to a previous decision in the Court of Appeal, where that court had ruled that an “equivalent period of compensatory rest” must have the characteristics of a rest in the sense of a break from work, and must so far as possible ensure that the period of the rest is at least 20 minutes (otherwise it would not be an “equivalent” period of rest). The argument that the 20 minutes can be made up of a number of shorter rest periods was rejected. The EAT also concluded that the argument that the larger number of shorter breaks was in fact better from a health and safety perspective was irrelevant, and noted that the Court of Appeal ruling indicated that it is the length of the break which is important, and it was not a matter for the employer to decide what health and safety requires in a particular case. Accordingly, the EAT upheld Mr Crawford’s claim that he was not being provided with the correct “compensatory rest.”

While the precise facts of the case address directly the requirements of Regulation 24 on “compensatory rest”, it clearly indicates that the basic normal right of a 20 minutes break under Regulation 12 will be satisfied only if the break is of the full length of 20 minutes, and is not broken down into smaller periods to then add up to 20 minutes (or more) in total.

The implication of the case is that employers need to check firstly that they are able to and do organise their work so that each worker will be able to take an uninterrupted 20 minutes break, and secondly to ensure that the workers actually do take that break. The case illustrates the fact that a number of small breaks totalling 20 minutes will not be sufficient to convince an Employment Tribunal in the future that the employer has met its obligations over the provision of rest breaks.  

We can help by providing you with appropriate policies to address these issues, and give advice on implementing them properly, or give advice on particular situations as they arise. 

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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