6th March 2018
This warning comes after an Employment Appeal Tribunal involving Network Rail has held that compensatory rest breaks must be at least twenty uninterrupted minutes long in length not as a series of mini-breaks.
Network Rail was found to have failed to take the necessary steps to facilitate full 20-minute rest breaks, despite the employee being in a role that has special provision for alternative arrangements.
The case was brought by a railway signalman who was responsible for running single-manned signal boxes on eight hour shifts. Due to train timetables, he could not take an uninterrupted break and had to be on-call when he did take a break. As a result, he argued that he had been denied his legal entitlement under the Working Time Regulations 1998 (WTR).
All workers are entitled to an uninterrupted 20-minute rest break away from their work station after six hours of working under the WTR. It must be known to be a rest break before it starts, so if someone has had an unexpected 20 minute gap in their day, this can’t be treated as the rest break retrospectively.
If a worker is on call during a break, then it will not count as a rest break, but Regulation 24 of the WTR says that some workers will be excluded from these provisions as it may not be feasible to schedule the rest break in the usual way, but they must be allowed an equivalent period of compensatory rest. This applies to railway workers and others such as paramedics, or lone workers such as those in a security role. In such cases, the fact these excluded workers might be “on call” would not necessarily mean that the break cannot comply with the compensatory rest requirements, e.g. if an excluded worker’s break is interrupted but they have the right to restart their break for a continuous period of 20 minutes, this would be compliant.
Although Network Rail provided a relief signaller in some regions, they did not do so in Mr Crawford’s region and instead told him that he could take shorter breaks during his shifts “between periods of operational demand” and that these shorter breaks would add up to more than 20 minutes.
At the first hearing the Employment Tribunal held that Network Rail had acted correctly and that when added together the short breaks were compliant with the requirements of compensatory rest. But Mr Crawford appealed, and the Employment Appeal Tribunal (EAT) ruled against Network Rail. The EAT said that if it were possible to provide workers with a full uninterrupted 20-minute break, then that should be what happens. As Network Rail were providing the relief signalman in other regions, they must have been able to take steps to provide the same option in Mr Crawford’s region.
Karen Bristow, Head of the Employment Team at Lamb Brooks comments : “Minimum rest periods are there for the protection of health and safety and this ruling demonstrates, once again, that employment tribunals will not allow employers to shirk their responsibility or alter a worker’s statutory rights to fit around business needs.
As with all terms of employment, the starting point should be a clear policy that everyone knows and understands, especially where workers are involved in environments in which pre-scheduled breaks are hard to operate, or they are working alone. It’s important to re-evaluate regularly and see if problems are arising, and take steps to ensure that breaks are being taken. You also need to be proactive about it, as arguing that a worker never asked for a break is not going to let you off the hook.
If you have a situation where it is difficult to give workers an uninterrupted break, away from their work station, then it’s worth reviewing the position with some specialist guidance, as the alternative may be an expensive tribunal claim.”
If you are affected by the outcome of this decision, or need advice on any other employment matter, call our employment expert today – Karen Bristow on 01256 305508.
Crawford v Network Rail Infrastructure Limited
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