Hughes v The Corps of Commissionaires Management Ltd

Where a working-time derogation applies to security or surveillance work requiring a permanent presence, the relevant question is whether the individual worker’s duties require permanent presence throughout the shift. The employer’s general business activity is insufficient. If the derogation applies, compensatory rest must provide a break from work and, so far as possible, at least 20 minutes free from work. It need not be identical to the statutory rest break or fall outside working hours if it genuinely compensates for the lost break. Objective reasons may include substantial financial, logistical and administrative difficulties, provided the decision is not based on purely economic considerations. Where equivalent compensatory rest is objectively impossible, appropriate health and safety protection is required; exceptional circumstances do not constitute a separate additional hurdle.

The appellant, a security guard, worked alone on shifts at a telecommunications site where his employer provided continuous security coverage. He had to remain on call and available to deal with visitors during breaks. The Employment Tribunal found that a full uninterrupted rest break could not be provided for objective reasons and that the arrangements nevertheless afforded appropriate protection under regulation 24(b) of the Working Time Regulations 1998.

The Employment Appeal Tribunal allowed the employer to argue on appeal that the arrangements constituted equivalent compensatory rest under regulation 24(a), and accepted that argument, alternatively upholding the regulation 24(b) conclusion. The central issues were the proper construction of regulations 21 and 24, whether the new point was properly admitted, whether the employer could have provided a full break, and whether a specific risk assessment was required. The EAT decision is identified as UKEAT/013/10/SM.

1. Appeal dismissed. The Court of Appeal upheld the EAT’s conclusion that the arrangements constituted equivalent compensatory rest under regulation 24(a), and alternatively that they afforded appropriate protection under regulation 24(b).
2. Regulation 21(b) focuses on the activities of the particular worker. It is engaged only where the worker’s own duties require permanent presence throughout the shift. If the work can be organised so that the worker need not remain permanently present, regulation 21(b) is not engaged and regulation 12 continues to apply. This issue must be addressed before considering regulation 24.
3. A regulation 12 rest break must be uninterrupted, known to be a break at its commencement, and capable of being used as the worker pleases. A break subject to possible interruption is not such a break, even if it later proves to have been uninterrupted.
4. Equivalent compensatory rest under regulation 24(a) need not be identical to a regulation 12 break. It must provide a genuine break from work and, so far as possible, at least 20 minutes free from work. The arrangement here met that standard because the worker could choose when to take the break and restart it if interrupted.
5. In determining objective reasons, tribunals may consider substantial financial, logistical and administrative consequences, consistently with the Directive’s recitals, although purely economic considerations cannot alone justify the arrangement.
6. Alternatively, regulation 24(b) does not impose separate requirements of both exceptional circumstances and objective reasons. Objective reasons establishing that equivalent rest cannot be provided demonstrate the exceptional nature of the case. A specific risk assessment concerning possible interruption was not required.

The EAT was entitled to admit the employer’s new point on regulation 24(a), since no new factual findings were needed and the point had general significance. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the employee’s appeal and upheld the EAT’s conclusion, subject to clarifying that regulation 21(b) concerns the worker’s activities.
• Employment Appeal Tribunal: accepted that the arrangements constituted equivalent compensatory rest under regulation 24(a), alternatively satisfying regulation 24(b): UKEAT/013/10/SM.
• Employment Tribunal: found that a full uninterrupted break could not be provided for objective reasons and that the arrangements afforded appropriate protection under regulation 24(b).