Deakin & Ors v Kuehne & Anor

A collective agreement may fix unpaid breaks by reference to the planned length of a shift, even where the actual shift differs. Where the agreement makes the break compulsory, the worker has an opportunity to take it, and the actual break cannot be determined, the stipulated break may be deemed to have been taken for pay calculations. A nine-hour shift ordinarily means the period from clocking on to clocking off, including the designated break. In the absence of evidence that the parties intended to implement an EU Directive not yet transposed into domestic law, the agreement should be given its natural meaning.

The appellants were drivers and draymen whose employment contracts incorporated the Supply Chain North 2 collective agreement after successive TUPE transfers. The dispute concerned the calculation of paid working time where the agreement required unpaid breaks of 30 or 45 minutes according to the planned length of the shift.

The Employment Tribunal upheld the claims for unauthorised deductions from wages. The Employment Appeal Tribunal, under UKEAT/0030/11/RN, allowed the employer’s appeal. The central issue before the Court of Appeal was the proper construction of the break provisions, including their relationship with applicable working-time legislation.

1. Appeal dismissed. Elias LJ gave the leading judgment. McFarlane LJ and Ward LJ agreed.
2. The agreement fixed the break period in advance by reference to the planned length of the shift. The planned period could differ from the hours actually worked. The break was compulsory, had to be taken during the working day, and was the worker’s responsibility.
3. On the first issue, the employer was entitled to deduct the stipulated 45-minute break even where the worker had in fact taken only 30 minutes. The conclusion depended on the combined circumstances that the anticipated break was 45 minutes, the worker had the opportunity to take it, the worker was obliged to take it, it would ordinarily be taken before the end of the shift, and its actual duration could not be determined. In those circumstances, it was legitimate to assume that the planned break had been taken. The resulting apparent anomalies at the boundary between 30- and 45-minute breaks were consequences of the contractual scheme, not grounds for a different construction.
4. On the second issue, a nine-hour shift meant the period from clocking on to clocking off, including the designated break. The 45-minute break was therefore triggered when the shift was planned to exceed nine hours, rather than after nine hours of actual work. The agreement’s natural meaning supported the employer’s method of calculating payment by deducting the break from attended hours.
5. The appellants relied on the Road Transport (Working Time) Regulations 2005 and Directive 2002/15/EC, under which a 45-minute break followed nine hours of actual work. That argument failed because the agreement was made in 2002, before the Directive had been transposed into domestic law, and there was no evidence that the parties intended to implement it contractually. The relevant legislation then in force, including Part VI of the Transport Act 1968 and section 96(2), did not justify departing from the agreement’s natural meaning. The EAT’s decision was upheld and the appeal failed.

• Court of Appeal (Civil Division) — dismissed the appellants’ appeal and upheld the EAT’s construction of the collective agreement: [2012] EWCA Civ 22.
• Employment Appeal Tribunal — allowed the employer’s appeal and held that the agreement required breaks to be determined by planned hours: UKEAT/0030/11/RN.
• Employment Tribunal — accepted the appellants’ construction on both break issues and upheld their unauthorised-deduction claims.