Hughes v Corps of Commissionaires Management Ltd

Security and surveillance workers within regulation 21(b) of the Working Time Regulations 1998 are not entitled to an ordinary uninterrupted rest break under regulation 12. They must nevertheless receive an equivalent period of compensatory rest wherever possible under regulation 24(a).

Equivalence does not require an identical break. The assessment concerns the character, quality and value of the rest, and may accommodate practical differences such as being on call, provided the worker receives a meaningful compensating break. Regulation 24(b) applies only where an objective assessment establishes that no equivalent rest can be provided during the shift. Appropriate protection may then include lesser periods of rest, work organisation or health checks.

The claimant was employed as a security guard working twelve-hour shifts at premises where only one guard was present at a time. He could take breaks in a kitchen, choose their timing and restart a break if interrupted, but could not be guaranteed uninterrupted rest in advance.

Following an earlier appeal and remission to a fresh Employment Tribunal, the tribunal found that the respondent had complied with regulation 24(b) and rejected claims for compensatory rest, pay and an extended limitation period. The claimant appealed. The respondent cross-appealed on the interpretation of regulation 24(a). The central issues were whether the breaks constituted equivalent compensatory rest and, alternatively, whether appropriate protection had been provided.

1. The appeal was dismissed. The Employment Appeal Tribunal substituted a judgment declaring that the respondent had not breached paragraph 24 of the Working Time Regulations 1998, and dismissed the claimant’s claim for a declaration and compensation.

2. Regulation 21(b) removes the ordinary regulation 12 entitlement to a “Gallagher” rest break for workers engaged in security and surveillance activities requiring a permanent presence. A Gallagher break must be uninterrupted, known in advance to be uninterrupted, and usable as the worker pleases. Regulation 24(a) requires a different form of rest: an equivalent period which compensates for the absence of that break by being as near as possible in character, quality and value.

3. The precise content of equivalent compensatory rest depends on the circumstances. It may involve a break during which the worker remains technically on call but is rarely interrupted, a break with reduced freedom, or an arrangement involving a longer break at another point in the work cycle. In the present case, the claimant was relieved of his duties, could choose when to take a twenty-minute break, and could restart it after interruption. Those arrangements sufficiently provided equivalence and compensation.

4. Regulation 24(b) was therefore unnecessary to the result. Alternatively, the Tribunal’s conclusion under that provision was unimpeachable. Regulation 24(b) is reserved for exceptional cases where an objective assessment shows that equivalent compensatory rest cannot possibly be provided during the shift. Appropriate protection is a broad concept and may include lesser rest, organisational measures or health checks. A regulation 3 risk assessment under the Management of Health and Safety at Work Regulations 1999 is not a prerequisite.

5. The claimant was not entitled to additional pay. He had been paid for his shifts, and could not treat the statutory rest entitlement as something capable of being sold.

• Employment Appeal Tribunal: following an earlier appeal, reported as UKEAT/0196/08, the claim was remitted to a fresh Employment Tribunal.
• Employment Tribunal: judgment registered on 4 January 2010; the claim for compensatory rest under the Working Time Regulations 1998 was found not well founded.
• Employment Appeal Tribunal: appeal dismissed; judgment substituted declaring no breach of regulation 24 and dismissing the claim for declaration and compensation.