The claimant worked for Network Rail as a signalman. He claimed that his employer failed to provide him with "rest breaks" or alternatively "compensatory rest" under the Working Time Regulations 1998 (WTR).

The signals he worked with required continuous monitoring and he was, in practice, able to take short breaks during his working hours. During a typical eight-hour shift the claimant enjoyed breaks which cumulatively amounted to substantially more than the 20 minutes rest break provided for in the WTR. During day-time shifts, however, a continuous 20 minute break was not possible, and he was always required to be on call. The WTR (NI) entitle a worker to at least 20 minutes break if working a 6 hour shift but in the case of railway workers they are to be provided with "an equivalent period of compensatory rest" (Reg 24).

The respondent argued that the claimant’s breaks totalled more than 20 minutes over the course of a day and that from a health and safety perspective this was preferable. The ET held that the short breaks were compliant with the requirement to provide compensatory rest. However, the EAT has allowed his appeal and stressed that so far as possible employers must ensure that the period which is free from work is at least 20 minutes.

Practical Lessons

According to the EAT "the length of the individual break is crucial" and employers are therefore not permitted to find that an employee has had sufficient breaks in the round despite not enjoying a continuous 20 minute break. The EAT also made clear that it is not relevant if an employer considers such an approach to be based on health and safety considerations as was argued here for Network Rail. It is clear to see that this decision will have practical implications for employers who require staff to be on call during a rest break as a continuous 20 minute rest break away from the work station will not be possible. Certain high-risk roles that require continuous monitoring will be most affected and employers should consider alternative break patterns where possible. Consulting the affected staff during this process is likely to be a good idea.

It cited the only authority on the meaning of Reg.24 (a), Hughes v The Corps of Commissionaires Management Ltd, a decision of the Court of Appeal. Mr Hughes was a security guard working alone, who was allowed breaks from his desk, but was always on call. The judge commented in Hughes that "if a period is properly to be described as an equivalent period of compensatory rest, it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes".
https://assets.publishing.service.gov.uk/media/5a4b8974e5274a52034f0b5e/Mr_D_Crawford_v_Network_Rail_Infrastructure_Ltd_UKEAT_0316_16_BA.pdf