Gallagher and others v Alpha Catering Services Ltd: CA 8 Nov 2004

The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and at their disposal. The employers argued that since the employees would get 20 minutes’ rest during their down time, the requirement of Regulation 12(1) for a rest break was satisfied.
Held: The employers were refused permission to cross-appeal on this point. Whilst the Directive was not as clear on this point as it might have been, it was tolerably plain that the intention was to focus on the activities of the worker: ‘No doubt the activities of the worker are the activities of the employer in law, but the focus is on the activities of the worker rather than the employer, which activities involve the requisite need for continuity of service or production.’
Peter Gibson LJ said: ‘it seems plain to me that down time in the present case . . cannot be a rest break, and a fortiori a period of down time cannot retrospectively become a rest break only because it can be seem after it is over that it was an uninterrupted period of at least 20 minutes. The worker is entitled under Reg 12(1) to a rest break if his working time exceeds six hours, and he must know at the start of a rest break that it is such. To my mind a rest break is an uninterrupted period of at least 20 minutes which is neither a rest period nor working time and which the worker can use as he pleases’.
Peter Gibson, Buxton, Jacob LJJ
[2004] EWCA Civ 1559, [2005] ICR 673, [2005] IRLR 102
Working Time Regulations 1998 12(1)(c), Council Directive 93/04EC
England and Wales
Appeal fromJP Gallagher and others v Alpha Catering Services Ltd T/A Alpha Flight Services EAT 17-Mar-2004
EAT Employment Tribunal wrongly focussed on the need for continuity of Respondent’s activities, rather than the worker’s, and so excluded workers from protection; WTR 21(c), Leave – CA – No error in construing . .
CitedLandeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
CitedSindicato de Medicos de Asistancia Publica (SIMAP) v Colsilieria de Sanidad y Consumo de la Generalidad Valenciana ECJ 3-Oct-2000
Doctors working in primary health care teams are subject to the Working Time Directive. They are not to be assimilated as public service workers alongside emergency services. All time on call was working time and overtime if present at a health . .

Cited by:
AppliedMacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
CitedHughes v Jones and Another EAT 3-Oct-2008
A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours . .
CitedHughes v The Corps of Commissionaires Management Ltd CA 8-Sep-2011
The employee security guard appealed against a finding that his employer had allowed rest breaks as allowed under the Regulations. He worked a continuous shift during which he was allowed to use a rest area, but he remained on call.
Held: The . .

These lists may be incomplete.
Updated: 21 January 2021; Ref: scu.219892