Gallagher & Ors v Alpha Catering Services Ltd

The derogation from a worker’s entitlement to a rest break where activities require continuity of service or production focuses on the worker’s activities, not the employer’s business needs. Work at an airport does not itself establish the derogation.

A foreseeable surge of activity requires an exceptional level of activity. Ordinary daily or weekly fluctuations do not suffice. A rest break must be identified as such when it begins and must be an uninterrupted period of at least 20 minutes which the worker may use as desired. On-call downtime cannot retrospectively become a rest break merely because it lasted for 20 uninterrupted minutes.

Employees engaged in delivering, loading and removing aircraft catering supplies claimed that their employer had denied them rest breaks under regulation 12(1) of the Working Time Regulations 1998. The Employment Tribunal held that regulation 21(c) excluded their entitlement because their activities involved a need for continuity of service or production. It therefore dismissed their applications.

The Employment Appeal Tribunal allowed the employees’ appeal. It held that regulation 21(c) focuses on the activities of the worker rather than those of the employer. It also affirmed the tribunal’s conclusions that ordinary daily and weekly fluctuations were not foreseeable surges under regulation 21(d), and that on-call downtime was not a rest break.

The employer appealed on regulation 21(c) and sought permission to appeal on the surge, downtime and compensatory-rest issues. The central questions concerned the proper scope of the statutory derogations and the characteristics of a qualifying rest break.

1. Appeal dismissed unanimously. Regulation 21(c) of the Working Time Regulations 1998, read in the light of article 17.2.1(c) of Council Directive 93/104/EC, focuses on whether the worker’s activities involve the need for continuity of service or production. Neither instrument refers to the employer as the object of the inquiry. The reference to work at docks or airports identifies activities which may meet that requirement; it does not automatically exclude every airport worker from rest-break protection. The Employment Tribunal had erred by focusing on the employer’s time-critical business and operational needs. The Employment Appeal Tribunal’s conclusion was correct.

2. Permission to appeal on regulation 21(d) was refused. The word “surge” must be construed restrictively in the context of a derogation applying in special cases. It denotes an exceptional level of activity beyond the fluctuations ordinarily experienced during a working day or week. The Employment Tribunal was entitled to find that the employer’s daily and weekly variations did not satisfy that standard. It was unnecessary to decide whether the reference to tourism could apply to the employees’ circumstances.

3. Permission to appeal on downtime was also refused. A worker whose working time exceeds six hours must know when a rest break begins that the period is a break. A qualifying break is an uninterrupted period of at least 20 minutes which the worker can use as desired. On-call downtime, during which an employee must remain available and may be summoned at any moment, cannot retrospectively become a rest break merely because 20 minutes elapsed without interruption. The court accepted the qualification in SIMAP v Conselleria de Sanidad [2000] IRLR 845 that being on call does not by itself necessarily make a period working time, but that did not make the employees’ downtime a rest break.

4. The court did not determine the separate arguments concerning compensatory rest under regulation 24 because they were unnecessary to the result and had not been argued. The case was remitted to the Croydon Employment Tribunal, subject to a one-month stay to permit settlement discussions.

1. Court of Appeal (Civil Division): Dismissed the employer’s appeal on regulation 21(c), refused permission to appeal on regulation 21(d) and downtime, and remitted the case to the Croydon Employment Tribunal: [2004] EWCA Civ 1559.
2. Employment Appeal Tribunal: Allowed the employees’ appeal concerning regulation 21(c), dismissed the employer’s cross-appeal concerning foreseeable surges and downtime, and held that a compensatory-rest issue would remain if regulation 21(c) applied.
3. Employment Tribunal: Held that regulation 21(c) excluded the employees’ entitlement to rest breaks and dismissed their applications. It also held that ordinary daily and weekly fluctuations were not surges under regulation 21(d), and that downtime was not a rest break.