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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hughes v The Corps of Commissionaires Management Ltd [2010] UKEAT 0173_10_2211 (22 November 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0173_10_2211.html Cite as: [2011] IRLR 100, [2011] ICR D2, [2010] UKEAT 0173_10_2211, [2011] ICR Digest 2, [2010] UKEAT 173_10_2211 |
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At the Tribunal | |
On 6 October 2010 | |
Before
THE HONOURABLE LADY SMITH
MRS C BAELZ
MS B SWITZER
![]() | APPELLANT |
![]() ![]() |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DAVID GRAY-JONES (Solicitor-Advocate) Messrs Thomas Mansfield LLP Solicitors 35 Artillery Lane London E1 7LP |
For the Respondent | MR CASPAR GLYN (of Counsel) Instructed by: Messrs Simons Muirhead & Burton Solicitors 8-9 Frith Street London W1D 3JB |
SUMMARY
WORKING TIME REGULATIONS
Working Time Regulations. Rest breaks. Security guard (special case under regulation 21(b)). Whether receiving "an equivalent period of compensatory rest" (regulation 24(a)). Whether not possible for objective reasons to grant such compensatory rest (regulation 24(b). Whether, if so, employer granting him appropriate protection.
Employment Tribunal found no breach of WTR since employer met the requirements of regulation 24(b). Appeal dismissed. Employer was actually meeting the requirements of regulation 24(a) but even if the EAT was wrong about that, the Tribunal's judgment that regulation 24(b) was met, was unimpeachable.
THE HONOURABLE LADY SMITH
Introduction
Background
Remit
"(a) whenever the claimant works for more than 6 hours if it was not possible for the respondent to grant the claimant an equivalent period of uninterrupted 20 minutes compensatory leave which he can use as he pleases and which falls outside his shifts;
(b) if it was not possible for objective reasons to grant such a period of rest (sic) how the respondent can afford the claimant such protection as my be adequate to safeguard him;
(c) whether the claimant should receive pay from the respondent for his compensatory leave; and
(d) whether the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply so that the period when a claim can be made by this claimant for a compensatory rest period is extended from a three- month period prior to the presentation of the claim to the Employment Tribunal to a six-moth period prior to the presentation of the claim to the Employment Tribunal."
"Whenever the claimant works for more than 6 hours, whether it is possible for the respondent to grant him an equivalent period of uninterrupted 20 minutes compensatory rest which he can use as he pleases which falls within the 12 hour shift?"
Working Time Directive
"Whereas
…….
(2) Article 137 of the Treaty provides that the Community is to support and complement the activities of the Member States with aview
to improving the working environment to protect workers' health and safety. Directives adopted on the basis of that Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
……..
(5) All workers should have adequate rest periods. The concept of "rest" must be expressed in units of time, ie in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.
………
(15) Inview
of the question likely to be raised by the organisation of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the health and safety of workers."
"Article 4
Breaks
Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including the duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.
……..
Article 17
Derogations
……….
2. Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection."
Working Time Regulations ("WTR") and the interpretation of paragraph 24
" 2 Interpretation
(1) In these Regulations-
………
'rest period' in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;
………..
'working time', in relation to a worker, means –
(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties,
(b) any period during which he is receiving relevant training, and
(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement;
and 'work' shall be construed accordingly;"
……………..
12) Rest Breaks
(1) Where a worker's daily working time is more than six hours, he is entitled to a rest break.
…..
(3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) 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…
21) Other special cases
Subject to regulation 24, regulations 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply in relation to a worker –
…..
(b) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers of security firms…..
24) Compensatory rest
Where the application of any provision of these Regulations is excluded by regulation 21 or 22, or modified or excluded by means of a collective agreement or a workforce agreement under regulation 23(a), and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break –
(a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and
(b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker's health and safety."
Judgment of the Employment Tribunal
- A rest break is a period of at least 20 minutes during which the worker can do as he pleases and is not at the disposal of his employer (Gallagher
v
Alpha Catering Services Ltd (T/A Alpha Flight Services));
- There is no intermediate category between "working time" and "rest periods" (Sindicato De Medicos De Asistencia Publica (Simap)
v
Conselleria De Sanidad YConsumo De La Generalidad
Valenciana
[2000] IRLR 845, ECJ; Landeshuptstadt
v
Jaeger [2003] IRLR 804, ECJ; and McCartney
v
Oversley House Management [2006] IRLR 514,EAT); and
- Some guidance as to the scope of the term "objective reasons" can be gained from the case of Adeneler
v
Ellinikos Organismos Galkatos in which the ECJ said:
"60) As this concept of 'objective reasons' is not defined by the Framework Agreement, its meaning and scope must be determined on the basis of the objective pursued by the Framework Agreement and of the context of the clause 5 (1)(a) thereof ... see, to this effect, inter alia case C-17/03VEMW
and others [2005] ECR 1-4983, paragraph 41, and the case law cited, and case C-323/03 Commission
v
Spain [2006] ECR 1-0000, paragraph 23).
……….
75)….the concept of 'objective reasons' within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out."
Issue (a)
They found that the Claimant's duties required him to be continuously available throughout each 12 hour shift and that he was liable to be interrupted during those periods. It was not, on the facts, possible for the Claimant's work to be arranged so as to allow for him to have an uninterrupted rest break during any of his shifts.
"With regard to the suggestion of time off in lieu, which was the principal solution relied upon by the Claimant, in the Tribunal'sview
this is not a solution anticipated by the Directive in the circumstances of this case. The compensatory rest in these circumstances would need to be within the period of work in order to comply with the objectives of the Directive. It cannot be objectively and reasonably sustained that the health and safety of the Claimant would be safeguarded by working non-stop through all of his shifts with the provision of subsequent additional compensatory rest after the shifts have ended, particularly when working on the night shift (see Jaeger above)."
Issue (b)
Issue (c)
Issue (d)
Discussion
Disposal
"The respondents have not breached the obligations they owe to the claimant under paragraph 24 of the Working Time Regulations 1998. The claimant's claim for a declaration under those regulations and compensation, all in terms of paragraph 30 thereof, is dismissed."