ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE LADY SMITH sitting with two Lay Members
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE ELIAS
|- and -
|THE CORPS OF COMMISSIONAIRES MANAGEMENT LTD
Mr Caspar Glyn (instructed by Messrs Simons, Muirhead & Burton) for the Respondent
Hearing date : 20 July 2010
Crown Copyright ©
Lord Justice Elias :
This is the judgment of the court
The relevant law.
(2) Article 137 of the Treaty provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers' health and safety. Directives adopted on the basis of that Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
(4) The improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.
(5) All workers should have adequate rest periods. The concept of "rest" must be expressed in units of time, ie in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.
(16) It is necessary to provide that certain provisions may be subject to derogation implemented, according to the case, by the Member States or the two sides of industry. As a general rule, in the event of a derogation, the workers concerned must be given equivalent compensation rest periods."
"working time" means any period which the worker is working, at the employer's disposal and carrying out his activities and duties, in accordance with national laws and/or practice."
"rest period" means any period which is not working time."
Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including the duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation."
"2. Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection."
(1) In these Regulations -
'rest period' in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;
'working time', in relation to a worker, means –
(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties….
and 'work' shall be construed accordingly;"
"12) Rest Breaks
(1) Where a worker's daily working time is more than six hours, he is entitled to a rest break."
The regulation then specifies that the details of the entitlement, including the duration of the break and the terms on which it is granted, should be in accordance with any relevant collective agreement. Absent any such agreement, the default position is set out in regulation 12(3) as follows:
"(3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one…"
"Subject to regulation 24, regulations ….12(1) do not apply in relation to a worker…
… (b) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers of security firms …"
"Where the application of any provision of these Regulations is excluded by regulation 21 or 22, or modified or excluded by means of a collective agreement or a workforce agreement under regulation 23(a), 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 scope of regulation 21and its relationship to regulation 24.
"… 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."
"… a period of downtime cannot retrospectively become a rest break only because it can be seen after it is over that it was an uninterrupted period of at least 20 minutes. The worker is entitled …to a rest break if his working time exceeds six hours, and he must know at the start of the break that it is such. To my mind a rest break is an uninterrupted period of at least 20 minutes which the worker can use as he pleases."
It follows that the break afforded to the appellant in this case would not satisfy the regulation 12 definition of a rest break because it was subject to possible interruption.
The history of the litigation.
"When considering regulation 24, the Employment Tribunal has 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]".
...a) whenever the claimant works for more than 6 hours if it was not possible for the respondent to grant the claimant an equivalent period of uninterrupted 20 minutes compensatory leave which he can use as he pleases and which falls within his shift;
(b) if it was not possible for objective reasons to grant such a period of rest how the respondent can afford the claimant such protection as may be adequate to safeguard him.
The conclusions of the Employment Tribunal on remission.
"The claimant argued the reasons put forward by the respondents were all based upon cost. However, the Tribunal considered that it is safe to conclude that significant decisions made by the majority of limited companies operating in a free market economy could be and usually are ultimately quantifiable in financial terms. However, the Directive is specific that the considerations must not be "purely" financial and the Tribunal accepts the Respondent's evidence that its reasons were not solely financial. The Tribunal also confirmed that financial factors were not determinative when reaching its own conclusions."
"… a step which provides compensatory rest for workers that is financially and/or logistically crippling for a small or medium sized employer that is neither immediately terminal to the business nor wholly impossible generally, is unlikely to be envisaged under the Directive as falling outside the exemption of being "not possible objective reasons", particularly having regard to the Recitals to the Directive".
The appeal to the EAT.
"In a special case, such as the present one, the worker is not entitled to a "Gallagher " rest break. The employer is, however, obliged "wherever possible" to allow the worker to take "an equivalent period of compensatory rest". It is plain that this is not the same as a "Gallagher" rest break. Certainly, the objective is to provide the worker with some break from his duties but the language of equivalence and compensation shows that it is something which is not identical to a "Gallagher" break. It can denote something which makes up for the fact that the worker does not receive such a break, by providing a break that is as near in character, quality, and value to a "Gallagher" rest break as possible. The precise elements of that equivalent period of compensatory rest will obviously vary according to the facts and circumstances of the individual case. In some cases, it may be possible for the employer to provide a break that very nearly meets the "Gallagher" criteria – circumstances where the worker is technically "on call" during the 20 minute break, but is, in practice, never called on, for example. In others, it may be that less freedom is able to be afforded to the worker during his break but he does get one or it may be that no break at all can possibly be given during the shift of each cycle, but that is compensated for by the worker being given a double break of 40 minutes in the second shift he works in the cycle. There are, no doubt, many other possible scenarios.
It seems to us that that approach to the interpretation of paragraph 24(a) properly reflects the aims and objects of the Working Time Directive in accordance with the obligation to interpret domestic law in conformity with the relevant Directive (see e.g.: Adeneler & Ors v Ellinikos Organismos Galkatos  IRLR 716."
"We are readily satisfied that the rest actually afforded to the Claimant amounted to an "equivalent period of compensatory rest". He was freed of all aspects of his work apart from the need to remain on the premises (which can be a feature of a "Gallagher" rest break) and to be on call. The latter, we accept, cannot be a feature of a "Gallagher" rest break (although, interestingly, it may not be working time, depending on the circumstances). He was, in principle, allowed a 20 minute break. He was compensated for the fact that he could not know in advance whether he would be interrupted and for the risk of actual interruption by being allowed to choose when to have his break and, if interruption occurred, to start his break again. These facts amply satisfy, in our view, the requirements of equivalence and compensation."
The grounds of appeal.
Did the breaks fall within regulation 24(a)?
"…These authorities show that, although the appeal tribunal has a discretion to allow a new point of law to be raised or a conceded point to be re-opened, the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the industrial tribunal."
Could full Gallagher breaks have been afforded to the appellant?
Was the Tribunal entitled to find that the criteria in regulation 24(b) were satisfied?