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Compensatory rest tested in court

Rebecca McGuirk

The meaning of “compensatory rest” under the Working Time Regulations 1998 has been considered by the Court of Appeal in Network Rail Infrastructure Ltd v Crawford. Contributor Rebecca McGuirk, Employment Partner – Trowers & Hamlins.

The Court, in disagreement with the Employment Appeal Tribunal (EAT), has held that compensatory rest does not have to be taken in one uninterrupted period and that shorter breaks could be aggregated to amount to the required time.

Mr Crawford, who was a railway signalman for Network Rail, provided relief cover at various signal boxes, working eight-hour shifts. The requirements of his job meant that he could not take a continuous rest break of 20 minutes at any time during a shift (under regulation 12(1) of the Working Time Regulations (WTR) a worker is entitled to a rest break if their daily working time exceeds six hours). 

Mr Crawford was a worker falling within the “special cases” exception under regulation 21 of the WTR which includes those working in rail transport whose activities are linked to ensuring the continuity and regularity of traffic. However, he was protected by Regulation 24 which provides that workers whose right to a rest break is excluded shall (a) be allowed to take “an equivalent period of compensatory rest”, or (b) be given “such protection as may be appropriate” in cases where this is not possible. 

Network Rail allowed rest breaks to be taken “between periods of operational demand when there are opportunities for ‘naturally occurring breaks'”. It provided that the 20 minute break could be an aggregate of short breaks taken over the course of a shift.

While the EAT held that this practice was unlawful, the Court of Appeal has disagreed. It referred to the decision in Hughes where the Court of Appeal held that an “equivalent period of compensatory rest” must have the characteristics of a rest in the sense of a break from work, and must so far as possible ensure that the period free from work is at least 20 minutes. 

The Court held that there was no basis for the proposition that only an uninterrupted break of twenty minutes can afford an equivalent benefit and that there was “no reason why a single uninterrupted break of 20 minutes will always be better than, say, two uninterrupted breaks of 15 minutes one-third and two-thirds through the shift”.

This decision will come as relief to those employers who use shift workers who are required to work during a period which would otherwise be a rest break and need to incorporate rest breaks into those shifts. Following Crawford such a period of compensatory rest will not have to be an uninterrupted single period of at least 20 minutes rest, but can be an aggregation of shorter periods taken over the course of a shift. 

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