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EAT gives guidance on rest breaks and compensatory rest

H worked as a security guard for CCM Ltd. Given the nature of his job, CCM Ltd required him to work during the periods (i.e. 12 hour-shifts) that would otherwise have been his rest breaks and he was not paid for any compensatory rest. 

The tribunal found that H was entitled to 40 minutes’ compensatory rest (i.e. two 20-minute rest breaks) for every 12-hour shift he worked and that compensatory rest must be allowed, wherever possible, during a period that would otherwise be working time. CCM Ltd appealed to the EAT. 

The EAT held that the Working Time Regulations 1998 entitle a worker to one rest break during the course of the working day where the daily working time exceeds six hours, and not one break for each and every six hours worked. While certain workers, such as those involved in security or surveillance, are excluded from the general right to a rest break, if it is possible to grant the worker an equivalent period of compensatory rest then that period must be given. 

If this is not possible for objective reasons, the employer must afford the worker such protection as may be appropriate to safeguard his or her health and safety. The EAT also held that compensatory rest must be taken during working time. The EAT then set out the correct approach to the application of Reg 24. It explained that there is a general right to compensatory rest under Reg 24(a) but this right is subject to the exception set out in Reg 24(b). 

So, a tribunal considering a case under Reg 24 has to adopt a two-stage approach. First, it has to decide if it is possible to grant the claimant an equivalent period of compensatory rest under Reg 24(a). If it is possible, the rest period must be granted. However, if it is not possible for objective reasons, the employer must afford the claimant such protection as may be appropriate in order to safeguard his or her health and safety, as required by Reg 24(b).

Editor’s Note: This decision raises the complicated matter of when a worker must be allowed to take compensatory rest. The EAT thought that it must be taken during what would otherwise be working time. 

However, the European Court of Justice in Landeshauptstadt Kiel v Jaeger directed that compensatory rest should be provided immediately after the end of the working period. Despite the complication, this decision must be welcomed by both employers and employees. 

For employers, it determined that no matter the length of the working day, they are only obliged to provide one 20 minutes rest break. For employees, it is conclusive that only in exceptional cases will they be deprived of a compensatory break. Unfortunately no guidance was given to what constitute “protection as may be appropriate in order to safeguard health and safety”, as required by Reg 24(b).