Last week, in a useful decision for employers, the Court of Appeal confirmed that compensatory rest under the Working Time Directive need not be uninterrupted.
The right to a rest break
Employers usually need to ensure that an employee who works for 6 hours is provided with an uninterrupted 20 minute rest break which can be taken away from their workstation.
Industry exceptions and periods of compensatory rest
In some industries an uninterrupted 20 minute rest break is impossible to guarantee. Acknowledging this, the WTD contains exceptions for employees in specific sectors. These include (but are not limited to) air, road, sea, fishing, junior doctors and rail. If other sector specific requirements are met, rather than provide a 20 minute uninterrupted rest break an employer must:
wherever possible, allow the employee to take an equivalent period of compensatory rest; and
in only the exceptional cases where that is not possible, for objective reasons, provide the employee with an appropriate level of protection in order to safeguard the employee’s health and safety.
This case concerned National Rail and an employee whose job was to stand in for absent colleagues who work in signal boxes. His shifts lasted for more than 6 hours. The nature of his work meant a continuous 20 minutes of uninterrupted rest couldn’t be guaranteed. Nevertheless, the employee had plenty of down time. During shifts the employee was undoubtedly able to take a series of shorter breaks which, when aggregated, amounted to more than 20 minutes. National Rail argued this discharged their obligation to provide compensatory rest. The employee didn’t agree.
The Court agreed with National Rail and said compensatory rest did not need to be uninterrupted. In their view, the WTD contained exceptions to the standard 20 minute uninterrupted break requirement for a reason. If compensatory rest must also be interrupted, it would have the effect of undoing that exception which cannot have been lawmakers' intention.
Employers needing to give employees compensatory rest will welcome this decision. It will make WTD compliance simpler and potentially cheaper where staff have been retained just to provide cover designed to ensure that 20 minute uninterrupted rest breaks to be guaranteed.
Importantly, however, employers should not assume they can push this decision to its logical extreme. A series of excessively short, say one minute, breaks is unlikely to comply with the WTD. The Court explained that whether the employer’s provision for compensatory rest is an “equivalent period” will be a matter for the informed judgment of the Tribunal. It also intimated that employers should make sure the provision they make for compensatory rest gives the employee the same benefit to their well-being as if they had had a 20 minute uninterrupted break.
The Court of Appeal has ruled that there is no reason why a rest break should be uninterrupted in certain industries, overruling a previous decision in the Employment Appeal Tribunal.