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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Crawford v. Network Rail Infrastructure Ltd [2017] UKEAT 0316_16_0811 (8 November 2017) URL: https://www.bailii.org/uk/cases/UKEAT/2017/0316_16_0811.html Cite as: [2017] UKEAT 0316_16_0811, [2017] UKEAT 316_16_811, [2018] ICR D5 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)
![]() | APPELLANT |
![]() ![]() ![]() ![]() |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
BETWEEN:
For the Appellant | MS NAOMI LING (of Counsel) Instructed by: Thompsons Solicitors LLP Congress House Great Russell Street London WC1B 3LW |
For the Respondent | MR ANDREW BURNS (One of Her Majesty's Counsel) Instructed by: Eversheds LLP Bridgewater Place Water Lane Leeds LS11 5DR |
SUMMARY
WORKING TIME REGULATIONS
The Claimant/Appellant 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 regulation 12 of the Working Time Regulations 1998 or "compensatory rest" under regulation 24(a). The Employment Tribunal found that regulation 12 did not apply and that the arrangements were compliant with regulation 24(a).
He appealed on the basis that "an equivalent period of compensatory rest" must comprise one period lasting at least 20 minutes. The appeal succeeded in the light of Hughes v
The Corps of Commissionaires Management Ltd [2011] EWCA Civ 1061 (in particular the judgment of Elias LJ at paragraph 54).
HIS HONOUR JUDGE SHANKS
"(5) All workers should have adequate rest periods. The concept of "rest" must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. …"
There were then the definitions at Article 2. Number 2 defined "rest periods" as: "any period which is not working time", and number 9 defined the words "adequate rest" to mean that:
"9. … workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term."
Article 4 says:
"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 duration and the terms on which it is granted, shall be laid down in collective agreements … or, failing that, by national legislation."
Then, there is provision for derogations at Article 17(2) and it says that derogations of specific types:
"(2) … may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements … 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."
"(f) where the worker works inrailway
transport and -
…
(iii) his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic."
In those circumstances, regulation 24, which is headed "Compensatory rest", becomes of crucial importance. Regulation 24 says this:
"Where the application of any provision of these Regulations is excluded by regulation 21 … 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."
"4. At single manned locations breaks must be taken between periods of operational demand where there are opportunities for "naturally occurring breaks". These are times when there is no operational activity which requires immediate attention or response. At such locations the 20 minute break may be an aggregate of shorter breaks over the course of the 3rd, 4th and 5th hours. In this instance at least one of the naturally occurring breaks should be of sufficient length to allow the individual to take a personal needs break and to take refreshment (Note: 5 minutes is the recommended minimum time)."
The ET do not expressly find that that arrangement was compliant with regulation 24(a), but it is implicit in their conclusions that that is what they found. In particular, conclusion paragraph 13.2 says in terms that the Claimant "has been permitted (indeed, encouraged) to take compensatory rest breaks".
"12.23. If we are wrong on all of the above, we find that the Respondent could introduce the facility to roster breaks as it has done elsewhere. We do not accept Mr Burns's submission that it makes no sense to provide relief for the relief signaller. When the Claimant is the relief signaller, he is the signaller for that shift. A relief signaller would then be able to move between the boxes, giving each single signaller a break, notwithstanding that we have heard this is apparently not desired by anyone in the region where the Claimant works, other than the Claimant himself."
In other words, the ET found that it would be possible, by having someone to come and relieve the Claimant and his colleagues, to roster in a full 20-minute rest break which (presumably) would comply with the requirements of regulation 12, although that of course does not expressly apply to the Claimant.
"54. We would accept that if a period is properly to be described as an equivalent period of compensatory rest, it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes. If the break does not display those characteristics then we do not think it would meet the criteria of equivalence and compensation. In this case the arrangements plainly did meet those criteria, as the EAT found. Indeed, since the rest break begins again following any interruption, many would say that this was more beneficial than a regulation 12 Gallagher break would be.
55. We would add that we do not think that it is likely to matter in practical terms which paragraph is applicable, at least in circumstances where the employer is unable to offer a Gallagher rest break but adopts arrangements which come as close as possible to replicating that break. Even if such an arrangement does not fall within paragraph (a), we would have thought that it is bound to fall within paragraph (b)."