Where there is a genuine entitlement to summarily dismiss, an employee cannot rely on the...
20-minute rest break means a whole 20 minutes
Crawford v Network Rail Infrastructure Ltd
The right to a rest break under the Working Time Regulations is the right to an uninterrupted break of 20 minutes. An employer cannot meet this statutory requirement by aggregating breaks of a shorter duration.
Regulation 12 of the Working Time Regulations 1998 (WTR) states that all workers are entitled to an uninterrupted rest break of at least 20 minutes if their daily working time exceeds six hours and are entitled to spend it away from their workstation. Regulation 24 states that where a worker is excluded from these provisions (e.g. public transport, medicine, etc.) or by a collective/workforce agreement and is required to work during a period that would otherwise be a rest break, his employer must allow him an ‘equivalent period of compensatory rest’.
Mr Crawford was a railway signalman working on single manned boxes on eight-hour shifts. He had no rostered breaks but was expected to take breaks when there were naturally occurring breaks in work whilst remaining ‘on call’. Although none of the individual breaks lasted 20 minutes, in aggregate they lasted substantially more than 20 minutes. He claimed that he was entitled to a 20-minute rest break under reg. 12 or compensatory rest under reg. 24. The tribunal found that reg. 12 did not apply - because Mr Crawford worked in an excluded sector (reg. 21) which meant that he was entitled to compensatory rest under regulation 24 - and that the employer’s arrangements were compliant with reg. 24. Mr Crawford had been permitted, indeed encouraged, to take compensatory rest breaks which in aggregate lasted more than 20 minutes. It also held that it would have been possible for his employer to organise a relief signaller to go between signal boxes, giving signallers the opportunity to take a 20-minute break. Mr Crawford appealed.
Allowing his appeal, the EAT held 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 free from work is at least 20 minutes. The fact that he might be on call would not mean he succeeded in his claim, and following a previous Court of Appeal decision, if he was interrupted on his break but was able to go back and restart his break for a full 20 minutes, this would also be compliant. The EAT rejected the employer’s argument that in aggregate he got more than 20 minutes and its system was actually better from a health and safety point of view than a system involving a continuous 20-minute break. The length of the individual break is crucial; it cannot be open to employers to decide otherwise on the basis of their views as to what health and safety requires in a particular case.
On the basis that there were some shifts which Mr Crawford was required to work where there was no opportunity for a continuous break of 20 minutes, and that it would be possible to provide such a break by providing a relief signaller as found by the tribunal, it was clear that reg. 24 was not satisfied on those shifts. The employer was therefore in breach of its obligations under the WTR.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0316_16_0811.html
Only those in specific sectors are entitled to compensatory rest, but the principle of what that break looks like remains the same – it must be uninterrupted. If an employee chooses to sit at their desk during their rest break then this is a matter for them, but it must be clear that they are not working. It is often tempting to say: ‘I know you are on lunch but any chance you can pick up the phone as we are all busy’ in which case they would not be getting their 20 minutes uninterrupted rest and an employer would need to start the clock again for the 20 minutes. In an ideal situation, employees should be encouraged to leave their desk and go somewhere else for their break so there is no chance of interruption.