Gallagher & Ors v Alpha Catering Services Ltd

Derogations from workers' rest-break rights are to be read as applying where the worker's activities, not merely the employer's business, involve a need for continuity; a "surge" requires an exceptional increase in activity beyond routine daily or weekly fluctuations; and periods of "downtime" do not qualify as rest breaks where the worker remains at the employer's disposal and does not know at the outset that the period is his own time.

(1) Disposition: Appeal dismissed; the Court of Appeal upholds the EAT's conclusion that the exclusion in Regulation 21(c) is to be read with reference to the worker's activities rather than merely the employer's business, and refuses permission to appeal on the other points. (2) The court construed Regulation 21(c) and Article 17.2.1(c) of the Directive as focusing on the activities of the worker which involve a need for continuity of service or production rather than solely on the employer's commercial operations. The Employment Tribunal erred in concentrating on the employer's need; the EAT's construction was correct and narrowly read derogations from health-and-safety rights. (3) On Regulation 21(d) the court held that a "surge" connotes an exceptional level of activity (for example seasonal or special-period peaks) beyond ordinary daily or weekly fluctuations; the Employment Tribunal's restrictive approach was correct and there was no real prospect of success on Alpha's appeal. (4) On downtime the court held that where workers remain at their employer's disposal and are required to maintain contact and may be recalled, such periods do not qualify as rest breaks simply because an uninterrupted period of 20 minutes can be identified retrospectively; the Employment Tribunal's factual approach and conclusion were not to be disturbed. (5) The Court did not rule finally on Regulation 24 in view of the dismissals on the principal points. (6) Costs awarded to the Employees; matter remitted to the Employment Tribunal for further directions.