Can I allow my worker to take their 20 minutes rest break in segments?

 

As an employer you are likely to be aware that the Working Time Regulations 1998 sets down the legal minimum requirements of what rest breaks should be provided to workers during their working day. But do you know the answer to the following question?  Can I allow my worker to take their 20 minutes rest break in segments?

In the absence of any applicable collective agreement, workers should receive an uninterrupted rest break of not less than 20 minutes, and the worker is entitled to spend that break away from their workstation or place of work.  However, there are exemptions to the operation of regulation 12. One such exemption can be found in regulation 21(f), this provides that regulation 12 does not apply, where a worker works in railway transport and their activities are intermittent, involve working on trains or are linked to transport timetables to ensure “continuity and regularity of traffic”.  In these circumstances the worker would receive periods of “equivalent periods of compensatory rest”.

But what does this mean? Does it mean 20 minutes uninterrupted rest? Or is it possible to provide a worker with small pockets of breaks which when aggregated equate to 20 minutes?  Following the recent Employment Appeal judgement handed down in the case of, Crawford v Network Rail Infrastructure Ltd , we now have some clarity on this point. 

What happened?

In this case Mr Crawford was employed as a railway signaller with Network Rail. Due to the nature of his work which was closely linked to the train timetable he was expected to work 8 hour shifts with no rostered breaks. Although he had no rostered breaks, he could however take breaks as and when they naturally occurred between periods of operational demand.  The employer expressly advised Crawford and other signallers that where it was not possible to take a 20 minutes rest break that shorter breaks should be taken as and when possible; the aggregate of which should calculate to 20 minutes. Crawford’s complaint was that, at all times throughout the shift he had to remain “on call” and he did not receive either “rest breaks” or alternatively “compensatory rest”.

In response to this complaint Network Rail argued that its obligation under the regulation 24 were met when Crawford received short rest breaks throughout his shift at different intervals which equated to more than the required 20 minutes.

What did the Employment Tribunal say?

The Employment Appeal Tribunal disagreed with Network Rails submissions and held that the system which it had put in place to provide compensatory rest did not comply with the Working Time Regulations. Notably, the tribunal judged remarked that, “the length of the individual break is crucial; it cannot be open to employers to decide otherwise on the basis of their views as to what health and safety requires in a particular case.” The case was sent back to the employment tribunal for an assessment of which shifts the worker did not receive the rest breaks and the appropriate remedy to award in respect of each breach.

Although this case related to a worker in the railway transport sector it does have relevance to all employers. The key points to take away from this case is that regardless of which regulation applies, 12 or 24, a worker should receive rest breaks or compensatory rest of at least 20 minutes in duration. This break should not be segmented in any way. If any employer finds that there current operational activities make it difficult for a worker to receive a continuous uninterrupted break of no less than 20 minutes, then serious consideration should be given to scheduling an additional worker to cover rest breaks. Failure to address any existing breaches with regard to the application of rest breaks or compensatory rest is likely to leave an employer at risk of future litigation.