Under the Working Time Regulations 1998 (WTR), workers are entitled to an uninterrupted 20-minute rest break if their daily working time exceeds six hours. However, there are exceptions to this general rule to take account of unusual or particular working arrangements where strict compliance would cause operational difficulties, for example in the case of workers who are ‘engaged in security and surveillance activities requiring a permanent presence’. Where the exception applies, the employer should nevertheless allow the worker to take an ‘equivalent period of compensatory rest’ wherever possible (Regulation 24(a)). In exceptional cases in which there are objective reasons for this not being possible, the employer must provide such protection as is appropriate in order to safeguard the worker’s health and safety (Regulation 24(b)).
In Hughes v The Corps of Commissionaires Management Ltd., a security guard claimed that the arrangements made by his employer with regard to rest breaks during his shift did not comply with its obligations under the WTR.
Mr Hughes’ duties required him to be continuously available to supervise and monitor access to a site in Croydon owned by the telecommunications company Orange. He therefore remained on call during his rest breaks, leaving a note of his contact number on the reception desk. Sometimes, he was able to have an uninterrupted break, although he could never be sure in advance that this would be the case. If interrupted, however, he was permitted to start his break again.
The Court of Appeal held that whereas in normal cases a rest break must be outside working time altogether, in cases where an equivalent period of compensatory rest is offered, this need not be the case. It must, however, ‘have the characteristics of a rest in the sense of a break from work’ and the employer must, as far as is possible, ensure that the period that is free from work is of at least 20 minutes. The Court was satisfied that the nature of Mr Hughes’ job meant that he fell within the exceptions for the purposes of the WTR and the breaks provided to him did equate to an ‘equivalent period of compensatory rest’ under Regulation 24(a). Indeed, since he was permitted to restart any break which had been interrupted, he would sometimes enjoy a longer break than the 20 minutes normally required by the WTR.
In case it was wrong in its judgment that the arrangements in this case fell under Regulation 24(a), the Court went on to consider them under Regulation 24(b). This does not set two hurdles – exceptional circumstances and objective reasons why an equivalent period of compensatory rest cannot be provided. The presence of the latter establishes the former. Cases where the employer can provide neither a normal rest break nor a compensatory rest break will perforce be exceptional. Furthermore, the Court rejected Mr Hughes’ argument that his employer could not satisfy the Regulation unless it had carried out an assessment of the risks arising when there is a possibility of a rest break being interrupted. There is nothing in the legislation that requires this.
The Court of Appeal therefore held that there was no contravention of the WTR in this case.