What Counts as a Break from Work?

Crawford v Network Rail Infrastructure Case Summary

Due to the nature of a person’s work it is not always possible for a definite break to be scheduled into their shift. A recent decision from the Employment Appeal Tribunal, the court that handles appeals from the Employment Tribunal, tells us what employers must offer such employees in order to comply with the law regarding breaks.

The Appellant in the case was employed as a railway signalman, the person responsible for tracking trains passing through a certain point and ensuring the necessary signals are given. In addition to operating the signals, a signalman is required to carry out tasks such as contacting maintenance teams and writing incident reports. This means that even if a train is not passing a signalman still has duties to carry out.

The Appellant’s complaint to the Employment Tribunal and, subsequently, the Employment Appeal Tribunal was based on Regulations 12 and 24(a) of the Working Times Regulation 1998. Under Regulation 12, a person working for a period of six hours or more ought to be allowed a continuous break of 20 minutes, during which they cannot expect to be required to return to work. The Appellant could not actually rely on Regulation 12 itself because by virtue of Regulation 21 it does not apply to a person whose work ensures the continuity and regularity of railway transport.

Employees excluded from the entitlement to a continuous break are instead protected by Regulation 24. This stipulates that an employee that is required to work during a time when they would be given a break should be given a break at an alternative time, a break known as ‘compensatory rest’.

Regulation 24 recognises that there will, exceptionally, be times when the demands of a person’s role mean they simply cannot take a break from work. In such circumstances an employer must take steps to ensure the health and safety of the employee is not compromised. It was not argued during the appeal that the nature of the Appellant’s work meant that it was such an ‘exceptional case’. Indeed, such an argument would likely have failed as the Employment Tribunal found that it would have been entirely possible for the Respondent (National Rail) to have assigned a person to provide cover to the Appellant during any break.

The Appellant typically worked shifts lasting eight hours, during which there was no time specifically allocated for a break of any length however, the Appellant was able to take a number of short breaks that together would total over 20 minutes. It was very often not possible for him to take one break lasting for a total of 20 minutes and during all of his short breaks he could be required at any point to return to work, essentially he would be ‘on call’.

The main issue that fell to be decided by the Employment Appeal Tribunal was whether National Rail had, by allowing short breaks accumulating to a total of at least 20 minutes, complied with Regulation 24.

Due to the Court of Appeal decision in Hughes v The Corps of Commissionaires Management Ltd, the EAT found against National Rail. In Hughes the Court of Appeal found that it did not matter if a worker was ‘on call’ during a break but that to be deemed to be a ‘compensatory rest’, a break must last continuously for at least 20 minutes. By not allowing the Appellant to have such a break, National Rail were in breach of Regulation 24 and the Appellant was entitled to compensation for this.

The decision by the EAT means that to comply with Regulation 24 an employee working for a period of 6 hours must have the opportunity to take an interrupted break of 20 minutes. It is permissible for the employee to be on call during their break however, if the break is interrupted they are entitled to, at some stage during their shift, begin their break again to ensure that they take a full, uninterrupted 20 minutes.

An employee can bring a complaint to an employment tribunal in the event they are denied their entitlement to a 20 minute continuous break and can be awarded compensation if their complaint is upheld. It is important to bear in mind that any complaint must be brought within three months of an employee being refused such a break.

This brief summary was written by Ruth Costello, a Legal Assistant at Gerard McDermott QC Ltd. The full judgment in Crawford v Network Rail Infrastructure Ltd UKEAT/0316/16/BA can be found here.