EAT WORKING TIME REGULATIONS
The claimant, who worked as a security officer, made a claim for compensatory rest under the Working Time Regulations.
Under regulation 12 of those regulations, it is provided that ‘where a worker’s daily working time is more than six hours he is entitled to a rest break’. Such a break is for 20 minutes where, as in the present case, there is no collective agreement or workforce agreement in force.
Security guards fall outside these provisions but regulation 24 provides that:
‘Where the application of any provision of these Regulations is excluded by regulation 21 or 22 . . and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break –
a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and
b) in exceptional cases in which it is not possible, for objective reasons, 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’.
The issues are:
A. if under the 1998 regulations, a worker was entitled to a rest break for each period of six hours which he works or whether he is only entitled to one period of rest for however long he works in excess of 6 hours (Issue A);
B. In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (Issue B); and
C. Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? (Issue C)
As to issue A, a worker is entitled to one period of rest for how ever long he works in excess of 6 hours.
As to issue B, the Employment Tribunal has to adopt a two-stage approach in which it has first to be decided if the claimant’s case was such that it was not ‘possible for objective reasons [to] grant such [an equivalent period of compensatory] rest’. If the answer was in the affirmative in the sense that it was possible, the claimant would be entitled to an equivalent period of compensatory rest but if the answer was in the negative in the sense that it was not possible, then pursuant to regulation 24(b), the respondent will have to ‘afford the claimant such protection as may be appropriate in order to safeguard the [claimant]’.
As to issue C, a claim can only be made in respect of a prescribed period of 3 months from the time when the claimant should have been given a compensatory rest period unless the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply in which case the prescribed period is extended to six months.
Citations:
[2008] UKEAT 0196 – 08 – 2210
Links:
Statutes:
Employment Act 2002 (Dispute Resolution) Regulations 2004 15
Jurisdiction:
England and Wales
Employment
Updated: 19 July 2022; Ref: scu.277155