Deakin & Ors v Kuehne & Anor

The Court of Appeal considered the proper construction of a clause in a collective agreement (Supply Chain North 2) incorporated into the appellants' contracts concerning compulsory breaks. The appellants claimed unauthorised deductions from pay under section 13 of the Employment Rights Act 1996, alleging the employer deducted longer planned breaks than were actually taken. The court held that the agreement fixes the break in advance by reference to the planned length of the shift, that the break must be taken "in the course of the working day" and is a compulsory obligation on the worker, and that where it is not practicable to verify actual break-taking the worker is to be treated as having taken the planned break. The court therefore rejected the contention that the 45-minute break is triggered only after nine hours of actual working time and accepted the employer's construction that the trigger is a planned shift in excess of nine hours (so attended hours include the planned break).

Background and parties: The appellants are drivers/draymen employed by the respondent after TUPE transfers. A collective agreement (Supply Chain North 2) negotiated by the TGWU in 2002 was incorporated into their contracts. The respondent was not a negotiating party and there was little evidence about the agreement's formation.

Nature of claim and procedural posture: The drivers brought claims to the Employment Tribunal for unauthorised deductions from pay under section 13 of the Employment Rights Act 1996, arguing that the employer's method of calculating pay by reference to "attended hours" (clock-in to clock-out less a planned break) resulted in underpayment where a shorter break was actually taken. The Employment Tribunal accepted the appellants' construction. The Employment Appeal Tribunal (Serota QC) allowed the employer's appeal. The claimants then appealed to the Court of Appeal.

Issues framed:

• Whether the employer may deduct the break time fixed by reference to the planned shift even where the worker in fact took a shorter break.
• Whether the obligation to take the 45-minute break is triggered by nine hours of actual working time or by a planned shift in excess of nine hours (i.e. attended hours including breaks).

Court's reasoning and conclusions: The court emphasised three features of the clause: (i) breaks are fixed in advance by reference to planned shift length; (ii) breaks must be taken "in the course of the shift" (interrupting work) to serve health and safety objectives; and (iii) the break is compulsory and the duty of the worker to take it at a suitable time. On the first issue the court declined the appellants' invitation to require proof of actual break-taking because, in practice, it is often impossible to verify whether the longer planned break was taken; given the contractual obligation and typical timing of breaks, it is permissible to treat the worker as having taken the planned break. On the second issue the court adopted the natural meaning of "a 9 hour shift" as the period from clocking on to clocking off (i.e. attended hours include the designated 30-minute break), so a planned shift in excess of nine hours triggers the 45-minute break. The court rejected an inference that the collective agreement was intended to mirror the later domestic implementation of Directive 2002/15/EC given the absence of evidence about the agreement's drafting and the time lag before transposition. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the collective agreement fixes breaks by reference to the planned shift length; a worker is under a contractual obligation to take the planned break in the course of the shift and, where it is impracticable to verify actual break-taking, is to be treated as having taken the planned break. The 45-minute break is triggered by a planned shift in excess of nine hours (attended hours include the planned break). The court refused to infer that the agreement was intended to reflect the later domestic implementation of Directive 2002/15/EC in the absence of evidence and given practical difficulties of verification.

Claimants' Employment Tribunal succeeded. Employment Appeal Tribunal (His Honour Judge Serota QC) allowed the employer's appeal (UKEAT/0030/11/RN). Appeal to the Court of Appeal ([2012] EWCA Civ 22) dismissed.