Hughes v The Corps of Commissionaires Management Ltd

Derogations from the statutory right to an uninterrupted 20-minute rest break must be assessed by reference to the activities of the individual worker, not solely the employer’s business needs; an employer obliged to provide an equivalent period of compensatory rest under regulation 24(a) may, in appropriate circumstances, provide a compensatory arrangement that differs in form from a regulation 12 (Gallagher) break so long as it affords a genuine period free from work of comparable character and duration to protect health and safety.

The appellant, a single‑manned site security guard, complained that his employer’s practice of allowing breaks that could be interrupted by calls to duty did not satisfy the Working Time Regulations 1998. The Employment Tribunal found objective reasons made a full uninterrupted regulation 12 break impractical and that the arrangements afforded adequate protection under regulation 24(b). The EAT held the arrangements fell within regulation 24(a) as an "equivalent period of compensatory rest." The Court of Appeal considered the proper construction of regulation 21(b) (security/surveillance exception) and regulation 24(a)/(b) and whether the compensatory arrangements met the statutory test.

The central issue was whether the focus when applying regulation 21 is the activities of the employer or the individual worker and whether regulation 24(a) requires a compensatory rest to be identical to a regulation 12 rest break.

Disposition: Appeal dismissed. The EAT was correct that the arrangements could amount to an "equivalent period of compensatory rest" under regulation 24(a); alternatively they satisfied regulation 24(b).

1. On construction of regulation 21, the court adopts the approach that the relevant inquiry is the activities of the individual worker rather than the employer as an abstract entity. If the work patterns of the individual could be organised so that the worker need not be permanently present, regulation 21(b) will not be engaged. This follows authority and reasoning in Gallagher v Alpha Catering Services Ltd [2005] ICR 673.
2. The Working Time Directive and the Regulations embody health and safety objectives but permit narrow derogations where justified. Regulation 24 implements Article 17(2) of the Directive and requires that, where a provision is excluded, the employer should wherever possible allow an equivalent period of compensatory rest or, in exceptional cases where that is not possible for objective reasons, afford appropriate protection.
3. The Court of Appeal accepted the EAT’s approach that an "equivalent period of compensatory rest" under regulation 24(a) need not be identical in form to a regulation 12 (Gallagher) break. While a compensatory rest must have the characteristics of a break from work and as far as possible ensure a period free from work of at least 20 minutes, it can differ in form (for example, be technically within working time but discharge the worker from duties unless called upon) so long as it affords equivalent protection to health and safety.
4. The court rejected the submission that a compensatory rest could never fall within working time because the Directive defines rest as non-working time; the EAT’s analysis that an equivalent period may, in practical effect, exist within working hours and still be compensatory was endorsed. The decisive question remains whether the arrangement gives the worker a genuine period free from duties (the court remarked that restarting a break after interruption may, in practice, be more protective than a single uninterrupted 20-minute break).
5. Findings of fact by the Employment Tribunal that objective logistical, administrative and economic reasons made provision of a full Gallagher break impracticable were sustainable on the evidence. The court accepted that cost is a relevant contextual consideration (recitals to the Directive) provided it is not the sole or "purely" financial justification; here the tribunal found non-financial logistic difficulties as well.
6. On regulation 24(b), the court agreed with the EAT that paragraph (b) applies where no paragraph (a) alternative can be provided; the requirement of "exceptional" circumstances is not a separate hurdle to "objective reasons." The court also rejected the argument that a separate, specific risk assessment under the Management of Health and Safety at Work Regulations 1999 was required in order for paragraph (b) protection to be appropriate.
7. Orders: Appeal dismissed. The EAT and Employment Tribunal decisions were upheld: the arrangements either satisfied regulation 24(a) as an equivalent compensatory rest or, alternatively, satisfied regulation 24(b) by affording appropriate protection.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the EAT's conclusions, 08 September 2011.
• Employment Appeal Tribunal (Silber J presiding) allowed in part and remitted issues to the Employment Tribunal; held the compensatory arrangements could amount to regulation 24(a) equivalence (date and neutral citation referenced in the judgment).
• Employment Tribunal (on remission) found objective reasons prevented provision of a Gallagher break and that employer afforded appropriate protection under regulation 24(b).