Wed 03 Apr 2019

EAT judgement on compensatory rest overturned

The Court of Appeal has restored a decision of the employment tribunal that compensatory rest need not be an uninterrupted 20 minute break. 

Mr Crawford was a railway signalman working eight hour shifts on single manned boxes. He had no rostered breaks and was expected to take them when they "naturally occurred".  The boxes weren't busy, with something like six trains coming through per hour. However, it was not possible to get an uninterrupted 20 minute rest period which is the minimum requirement under regulation 12 of the Working Time Regulations ("WTR").   

Regulation 21 of the WTR provides that in some special cases the provisions of certain regulations - including regulation 12 - do not apply, albeit this is subject to the terms of regulation 24.  One of the special cases under regulation 21 is where a worker works in railway transport and his activities are intermittent, he spends working time on board trains or his activities are linked to transport timetables and ensuring the continuity and regularity of traffic.  Mr Crawford's role was one of these special cases.  Regulation 24 provides that when it is not possible for a worker who is one of these special cases to get a 20 minute uninterrupted rest break that the worker is entitled to "an equivalent period of compensatory rest". 

When Mr Crawford claimed that Network Rail had failed to provide him with rest breaks, or alternatively compensatory rest, an employment tribunal dismissed his claim.  The evidence showed that Mr Crawford could take short breaks which accumulated to more than 20 minutes.  However, on appeal the EAT found that for the right to compensatory rest to be met - which the statute required to be "an equivalent period" to that required by regulation 12 - the break must be for an uninterrupted period of 20 minutes.  

Network Rail  appealed to the Court of Appeal on the basis that the EAT was wrong to hold that compensatory rest must be for an uninterrupted period of 20 minutes.  The Court upheld that appeal finding that the description of the compensatory rest under regulation 24(a) as "equivalent" cannot be intended to import an identical obligation to that under regulation 12 (which states the 20 minutes must be uninterrupted) as the very reason it is given is because it is a special case where it is not possible to meet the requirement under regulation 12.  Rather, the intention must be that the rest afforded to the worker should have the same value in terms of contributing to his or her wellbeing.   

This case does not lay down any rules as to what "equivalent" rest will be in terms of hours and minutes.  It did give the example that two 15 minute breaks taken during a shift could be equally beneficial to one 20 minute break, but each case will depend upon its own facts.  The important, and indeed sensible, decision coming from this case is that compensatory rest need not be the identical uninterrupted period of 20 minutes rest referred to in regulation 12.

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