Following the Court of Appeal’s recent decision in Hughes v Corps of Commissionaires Management Ltd regarding compensatory rest, Emilie Bennetts of Charles Russell LLP explains the obligations on an employer to provide daily and weekly rest periods and breaks under the Working Time Regulations 1998.
Rest periods and breaks
What are the standard requirements under the Working Time Regulations?
Under the Regulations, workers are entitled to:
- a daily rest period of 11 hours’ uninterrupted rest per day;
- a weekly rest period of 24 hours’ uninterrupted rest per week (or at the employer’s choice, 48 hours per fortnight); and
- a rest break of 20 minutes when they have worked for more than six hours
Are there any exceptions?
There are a number of categories of workers who are excluded from the above entitlements. These include some rail, sea, air and road transport workers, offshore workers, police and emergency services and workers with unmeasured time (for example, autonomous decision makers).
There are also a number of “special case” workers who may not be entitled to rest breaks and daily and weekly rest periods. These workers include, among others, those engaged in “security and surveillance activities” requiring a permanent presence (which could include security guards) and workers whose activities involve the need for continuity of service or production (such as hospital-based nursing staff or press, radio and TV workers).
Finally, the entitlements to daily and weekly rest do not apply to shift workers, where they can’t take such rest between the end of one shift and the start of the next, or to workers who work split shifts.
What is compensatory rest?
If a “special case” or shift worker has to work during a period that would otherwise be a rest period or rest break, the employer must, wherever possible, allow the worker to take an equivalent period of compensatory rest. The prevalent view is that this should equal the length of the interruption(s) to the period of rest, and not the entirety of that period. Compensatory rest should ideally be taken during the same or following working day. The key objective of compensatory rest is to ensure that workers receive adequate rest, rather than to reduce working time.
What if it is not possible to allow compensatory rest to be taken?
The Working Time Regulations provide that in “exceptional cases” where it is not possible, for objective reasons, for an employer to grant compensatory rest, it shall implement measures providing appropriate protection for the affected worker’s health and safety instead of providing compensatory rest. This might include some form of additional assessment of the worker’s continued fitness to work, reducing his or her workload, or additional supervision.
What were the Court of Appeal’s findings in the case of Hughes v Corps of Commissionaires Management Ltd?
The Court of Appeal considered the nature of compensatory rest for the 20-minute rest break (as opposed to daily and weekly rest periods) in the context of a worker who was a security guard. In this context, the decision is helpful to employers because it:
- confirmed that a period of compensatory rest does not need to have exactly the same characteristics as a rest break under the Working Time Regulations, provided that it gives a break from work and, so far as possible, lasts for at least 20 minutes; and
- acknowledged that cost was an inevitable influence in an employer’s assessment of possible alterations to working arrangements so as to provide a rest break. In this case, Mr Hughes worked on his own and it could not be guaranteed that his break would be uninterrupted.
The Court also confirmed that when considering whether or not a worker is a “special case” worker (and therefore excepted from the entitlement to daily and weekly rest), it is the worker’s activities that have to be considered, not those of the employer. Therefore, if a worker is engaged in continuous surveillance, but working arrangements can be made to enable the worker to carry out their duties without a permanent presence, they would not fall under the category of a “special case”.
Emilie Bennetts, solicitor, Charles Russell LLP