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Jade Linton Associate Solicitor at Thursfields comments on the recent Court of Appeal decision in Network Rail Infrastructure Ltd v Crawford  EWCA Civ 269 where the Court of Appeal considered whether compensatory rest had to be taken in one uninterrupted period or whether a series of short breaks amounting to twenty minutes was sufficient.
UK workers are said to be skipping lunch in an effort to be more productive when studies have long suggested that taking a rest break is one of the best ways to increase productivity. A rest break is said to allow workers to gain focus and energy and can prevent the mid-afternoon slump (provided the employee did not consume too big a sarnie).
For many a rest break will consist of one uninterrupted break of anything from 20 minutes to 1 hour. The Working Time Regulations 1998 (“WTR”) provide that a worker is entitled to a rest break away from their workstation (if they have one) of at least 20 minutes if their daily working time exceeds 6 hours.
However, a worker who falls within a number of “special cases” under the WTR is excluded from the entitlement to a rest break but is entitled ‘wherever possible’ to an equivalent period of “compensatory rest”. In Network Rail Infrastructure Ltd v Crawford  EWCA Civ 269 the Court of Appeal considered whether compensatory rest had to be taken in one uninterrupted period or whether a series of short breaks could be aggregated to amount to the requisite time.
A railway signalman (Mr Crawford) provided relief cover at various signal boxes during his 8-hour shifts. The nature of his role meant he fell within the “special case” of worker within the WTR, the effect of which meant he was unable to take a continuous rest break of 20 minutes at any time during his shift.
He was permitted to take rest breaks “between periods of operational demand when there are opportunities for “naturally occurring breaks”. This would routinely result in an aggregate of short breaks taken over the course of his shift often resulting in rest periods which combined were more than his 20 minute entitlement.
Mr Crawford claimed this arrangement did not comply with the WTR and that he was entitled either to a 20 minute rest break or compensatory rest in one block of 20 minutes.
A worker who falls within one or more of the “special cases” under the WTR, including those working in rail transport whose “activities are linked to transport timetables and to ensuring the continuity and regularity of traffic” are excluded from the entitlement to a rest break. However, in these cases, the WTR provide that:
- His employer shall wherever possible allow him to take an equivalent period of compensatory rest.
- In exceptional circumstances where for objective reasons it is not possible to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety.
In Gallagher v Alpha Catering Services Ltd (t/a Alpha Flight Services)  IRLR 10, the Court of Appeal held that:
- When deciding whether the workers in any case were covered by the special cases under the WTR, a tribunal should focus on the activities of the worker rather than those of their employer.
The Court of Appeal found that adequate compensatory rest had been provided and such rest did not have to occur in one block of twenty minutes. In reaching the decision the “language” of the WTR was given careful consideration; the obligation under the WTR is to provide rest which is “equivalent” to an uninterrupted period of 20 minutes not rest that is identical. Therefore the rest afforded to Mr Crawford provided it had the same value in terms of contributing to his well-being as a single block of 20 minutes was lawful.
The decision of the Court of Appeal is logical particularly in cases where the requirements of the role are such that the traditional single block of 20-minute rest cannot be granted. There is no reason why two 15 minute breaks, for example, should not be as good as one 20 minute break. However, it is important when considering cases like this for our focus to be on the activities of the worker, consequently the same decision would likely not have been reached for an office worker for whom an uninterrupted break of 20 minutes is more than achievable. Different kinds of rest may be appropriate in different cases and consideration of the workers individual role and the impact of rest upon it should always be considered.
Regulation 12(1), 12(3), 24(a), 24(b) Working Time Regulations 1998 (SI 1998/1833) (WTR)
Gallagher v Alpha Catering Services Ltd (t/a Alpha Flight Services)  IRLR 10
Case: Network Rail Infrastructure Ltd v Crawford  EWCA Civ 269 (5 March 2019) (Underhill LJ, Lord Sales and Asplin LJ