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Hughes v Corps of Commissionaires Management- 07/10/2011
This article was first published in People Management on 7 October 2011:
http://www.peoplemanagement.co.uk/pm/articles/2011/10/hughes-v-corps-of-commissionaires-management.htm
Breaks that are interrupted can still count as rest under the Working Time Regulations
The case of Hughes v Corps of Commissionaires Management concerned a security guard, working 12-hour shifts on his own. He could take rest breaks in a kitchen area whenever he chose, but had to remain on call during these periods. He could leave a message on a reception desk with a contact phone number, saying he was on a break, which meant his breaks were sometimes interrupted. When this happened, he was allowed to start the break again. He claimed he was not getting the rest breaks he was due under regulations 12 or 24 (a) of the Working Time Regulations 1998 (WTR).
Regulation 12 entitles employees to an uninterrupted rest break of 20 minutes when working more than a six-hour day. Regulation 21 sets out a number of special cases where an employer is not required to provide such a rest break, including security and surveillance activities requiring a permanent presence. These employees should, however, get an ‘equivalent period of compensatory rest’ under Regulation 24 (a).
The Court of Appeal found the employer had not breached its obligations under the WTR, as the employee was allowed to restart his break when interrupted – this counted as compensatory rest under
Regulation 24 (a). Under this arrangement, he may well have been able to take rest breaks regularly, totalling more than the 20 minutes set out in the regulations.
The Court of Appeal confirmed that objective factors can be taken into account when considering a failure to provide the usual rest break, including the logistical and administrative problems faced by the employer if additional staff have to be employed to provide cover, and cost. For small businesses, costs will always be an issue and are likely to be taken into account by a tribunal. However, this would not be the case where the employer’s only aim was to maximise profits.
Many employers will not be able to provide the standard rest break under Regulation 12, due to the nature of the work. Work requiring long shifts to maintain continuity of production or a service, such as reception or care services, may fall within Regulation 21 rather than Regulation 12. An equivalent period of compensatory rest should be given in such circumstances: this will mean ensuring employees have a rest break and, if possible, a period free from work, lasting for a minimum of 20 minutes. If arrangements can be made to allow an employee to do their job without being permanently present, then they will be due the usual rest break under Regulation 12.
Employers carrying out their obligations under the working time rules should ensure that any assessment is based on the activities carried out by individual employees rather than on the employer’s business.
Case ref 2011 EWCA Civ 1061 CA
Regulation 12 entitles employees to an uninterrupted rest break of 20 minutes when working more than a six-hour day. Regulation 21 sets out a number of special cases where an employer is not required to provide such a rest break, including security and surveillance activities requiring a permanent presence. These employees should, however, get an ‘equivalent period of compensatory rest’ under Regulation 24 (a).
The Court of Appeal found the employer had not breached its obligations under the WTR, as the employee was allowed to restart his break when interrupted – this counted as compensatory rest under
Regulation 24 (a). Under this arrangement, he may well have been able to take rest breaks regularly, totalling more than the 20 minutes set out in the regulations.
The Court of Appeal confirmed that objective factors can be taken into account when considering a failure to provide the usual rest break, including the logistical and administrative problems faced by the employer if additional staff have to be employed to provide cover, and cost. For small businesses, costs will always be an issue and are likely to be taken into account by a tribunal. However, this would not be the case where the employer’s only aim was to maximise profits.
Many employers will not be able to provide the standard rest break under Regulation 12, due to the nature of the work. Work requiring long shifts to maintain continuity of production or a service, such as reception or care services, may fall within Regulation 21 rather than Regulation 12. An equivalent period of compensatory rest should be given in such circumstances: this will mean ensuring employees have a rest break and, if possible, a period free from work, lasting for a minimum of 20 minutes. If arrangements can be made to allow an employee to do their job without being permanently present, then they will be due the usual rest break under Regulation 12.
Employers carrying out their obligations under the working time rules should ensure that any assessment is based on the activities carried out by individual employees rather than on the employer’s business.
Case ref 2011 EWCA Civ 1061 CA
For further information, please contact Eugene Wojciechowski