Take a break!

  • David Harris
  • Tuesday, August 20th, 2019

The Court of Appeal has brought some clarity in relation to whether compensatory rest breaks need to be an uninterrupted 20-minute period or can be made up of shorter breaks totalling 20 minutes or more.

The judgment in Network Rail Infrastructure v Crawford [2019] EWCA Civ 269 confirms for employers within the exempt sectors, that compensatory rest breaks under regulation 24 do not have to be a period of 20 minutes uninterrupted time.

Rest breaks at work and time off work can be a cause of tension between employers and employees and in some cases the regulations are complex. There is conflicting information online about this topic so it will be worthwhile consulting a professional if you find yourself involved in a dispute in this area.

In this case the Claimant was a railway signalman, providing relief cover, working on single manned boxes on 8-hour shifts. He had no rostered breaks but was expected to take breaks as and when he could during his shift, whist remaining “on call”.

Whilst none of his individual breaks lasted 20 minutes, as a whole, the amount of time, the Claimant took in breaks was substantially more than 20 minutes.

The Claimant brought a claim before the Employment Tribunal that he was entitled to a 20-minute uninterrupted rest break under reg. 12 of the Working Time Regulations 1998 (WTR) or compensatory rest under reg. 24.

Reg. 12 (1) provides that “where daily working time is more than six hours, he is entitled to a rest break…Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for… is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one”.

Reg. 24 provides, however, that where in essence, reg 12 is excluded and “a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break – his employer shall wherever possible allow him to take an equivalent period of compensatory rest…” In other words, if a worker is not allowed to have an uninterrupted 20-minute break for a permitted reason they are entitled to a compensatory break.

The Tribunal found that, as the Claimant works in railway transport, his activities are intermittent and his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic, s 12(1) does not apply in relation to him and he was only entitled to compensatory rest. It also found that discontinuous breaks aggregating to 20 minutes was capable of satisfying regulation 24(a).

The Claimant appealed this finding, which was allowed and the EAT held that a period of rest could not be “equivalent” for the purpose of reg. 24 unless it was an uninterrupted period of at least 20 minutes. National Rail, however, argued that the EAT was wrong to hold as such and appealed this to decision to the Court of Appeal. They argued that their research indicated that a number of shorter breaks were more beneficial than longer ones during which the signalman did nothing. According to National Rail, long breaks might affect their concentration.

The Court of Appeal held that “equivalent” for the purpose of reg 24 (a) could not be intended to import the identical obligation that would have applied under reg. 12 but the intention must be that the rest afforded to the worker should have the same value in terms of contributing to his well-being. It was felt that there was no basis for the proposition that only an uninterrupted break of 20 minutes could afford an equivalent benefit or was better than for e.g. two uninterrupted 15-minute breaks.

This judgment will no doubt allow employers within the exempt sectors to have some clarity in that compensatory rest breaks under reg. 24 does not in every case have to comprise of an uninterrupted 20 minutes.