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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1061.html
Cite as: [2011] EWCA Civ 1061, [2012] 1 CMLR 25, [2011] IRLR 915

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		Neutral Citation Number: [2011] EWCA Civ 1061
		Case No: A2/2010/2967/EATRF

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE LADY SMITH sitting with two Lay Members
UKEAT/013/10/SM

Royal Courts of Justice
Strand, London, WC2A 2LL

08/09/2011

B e f o r e :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
LORD JUSTICE THOMAS
and
LORD JUSTICE ELIAS
____________________

Between:

	HUGHES	Appellant
	- and -
	THE CORPS OF COMMISSIONAIRES MANAGEMENT LTD	Respondent

____________________

Mr David Gray-Jones (instructed by Thomas Mansfield LLP) for the Appellant
Mr Caspar Glyn (instructed by Messrs Simons, Muirhead & Burton) for the Respondent
Hearing date : 20 July 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Elias :

This is the judgment of the court

This appeal raises issues of construction relating to regulation 24 of the Working Time Regulations 1998.

The appellant is a security guard who works for the respondent employer. His employer provides security guarding services for various clients. The appellant was assigned to a site at Croydon owned by Orange, the telecommunications company, where the respondent was providing twenty four hour security coverage. The appellant guarded the site together with two other security officers. It was a single manned site so that on any one day one security guard worked a day shift, another worked a night shift, and the third had a rest day. This apparently is a typical arrangement for single manned sites.

This appeal raises the question whether the appellant was given an appropriate rest break during his shift as required by the Regulations. Unlike most workers, he was not able to take uninterrupted rest breaks. His job duties required him to be continuously available to supervise and monitor access to the Croydon site. He was provided with a kitchen area where breaks could be taken but he had to remain on call during these periods. He was permitted to leave a message on the reception desk where the monitoring and security equipment was placed saying that he was on his break and leaving a contact number. This meant, however, that his break might be interrupted by visitors to the site. If his break was interrupted then he was permitted to start it again. Sometimes, particularly at night, he would in fact have a complete uninterrupted break although he could never be sure in advance that that would be the position.

The appellant complained that this arrangement did not comply with the employer's obligations to provide him with a break under the Working Time Regulations.

The relevant law.

The Working Time Regulations give effect to Council Directive 93/04EC, known as the Working Time Directive. (This was subsequently amended by Directive 2003/88/EEC but not in any material way.) The Directive lays down minimum health and safety requirements for the organisation of working time. The Directive stipulates maximum hours in the working week and seeks to ensure that workers receive adequate periods of rest between periods of work, and also have proper breaks during the course of their working hours.

The following Recitals of the Directive identify its fundamental underlying purposes. They demonstrate that whilst the purpose is the protection of the health and safety of workers, some flexibility in applying the standards may be justified to take into account unusual or particular working arrangements where strict compliance would cause operational difficulties.

"Whereas….

(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."

These principles are then reflected in the detailed rights conferred by the Articles of the Directive. Article 2 sets out the definitions. It defines both working time and rest periods as follows:

"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."

Chapter 2 is headed "Minimum rest periods - other aspects of the organisation of working time". Article 3 deals with daily rests and provides that workers should receive a minimum of 11 consecutive hours per 24 hour period; Article 4 with breaks; Article 5 with weekly rest periods, entitling a worker to a minimum of uninterrupted 24 hours in a seven day period; Article 6 provides for a maximum weekly working time of 48 hours; and Article 7 provides that workers should have at least four weeks' paid annual leave.

Article 4 is directly in issue in this case. It is as follows:

"Breaks

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."

Article 17 then identifies a number of areas where derogation from the rights conferred by the Directive is permitted. Article 17(2) is as follows:

"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."

Paragraph 3 of that Article then identifies particular kinds of work activities where derogations from some of the Articles, including the right to a break conferred by Article 4, may be permitted. They include "security and surveillance activities requiring a permanent presence." The appellant has conceded that the exception applies to him and his colleagues providing security work at the Croydon site, although for reasons we give later, we do not think that this concession was consistent with the arguments advanced before the Employment Tribunal.

The Working Time Regulations give effect to the Directive, frequently by adopting virtually the same language. The material provisions are as follows:

"2 Interpretation

(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;"

Regulation 12 provides that there must be certain rest breaks in the course of a worker's working time.

"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…"

The Government chose to take advantage of the right to create derogations conferred by Article 17 of the Directive. Part III of the Regulations sets out various provisions where the regulations have either been excluded altogether or have been modified in certain respects. Certain sectors of activity are excluded by regulation 18; domestic service by regulation 19; those working unmeasured working time by regulation 20; there is then a category defined as "other special cases" in regulation 21 with respect to whom certain of the rights are excluded including the right to a break under regulation 12; and regulation 23 empowers collective parties to modify or exclude certain rights again including regulation 12 rights.

For the most part the exceptions are defined by reference to the activities in which a worker is engaged. The relevant exception here is regulation 21(b) which provides:

"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 …"

The fact that exclusions or exceptions have been made with respect to certain workers does not mean that they are left without any rights under these Regulations. This is made clear by regulation 24 which is cast in the same language as Article 17.2 of the Directive:

"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.

In our judgment, an issue of some importance in this case is whether regulation 21 requires the court to focus on the activities carried out by the employer or those carried out by the worker. The language of the regulation, and indeed of the Directive which it implements, is somewhat opaque about this. The security activities referred to in paragraph 21(b) do not require the worker's permanent presence; obviously no activities could. Rather they require that the employer ensures that a worker is permanently present on site. If the intention were that paragraph (b) would apply whenever that situation arises, this would mean that all employees employed in that activity would be deprived of their rights under regulation 12. That would be so even if the employer could readily organise the work so as to secure breaks for them which are identical in every way to a regulation 12 break. If, however, the proper construction is that the paragraph applies only when the nature of the activity requires the particular worker to be permanently present throughout their shift, the derogation will be much narrower. It will apply only to those workers whose own work pattern satisfies the relevant conditions.

This question was considered by the Court of Appeal in Gallagher v Alpha Catering Services Ltd [2005] ICR 673. That case concerned regulation 21(c) rather than 21(b) but in our view it raises precisely the same issue of construction. Regulation 21(c) permits derogation where a worker's activities "involve the need for continuity of service or production as the case may be" in relation to various activities, one of which is work at docks or airports.

The appellant in Gallagher was employed by a company which provided food and drink to airlines operating out of Gatwick Airport. They had to load and unload aeroplanes very speedily. In between those bursts of activity they were entitled to "downtime" when they were not actually doing anything but had to remain in their vehicles so that they could be called upon by the employer as and when required. The employees alleged that they were not being given their regulation 12 work breaks. The company relied upon regulation 21(c) claiming that they required continuity of service for their operations so that regulation 12 was disapplied. In the alternative, they submitted that downtime of at least twenty minutes duration constituted a rest break within the meaning of regulation 12.

The Employment Tribunal held that the workers did fall within the scope of regulation 21(c) because the employer's activities required continuity of service. The EAT upheld the employees' appeals on the grounds that the Employment Tribunal had wrongly focused on the employer's activities, whereas in fact they should have concentrated on the activity of the particular workers. It appears to have been accepted that had they done so, the regulation would not have been applicable because the staff rotas could have been so arranged as to secure an appropriate regulation 12 break for those concerned. Accordingly, the continuous presence throughout the shift of any particular worker was not required and so regulation 21(b) was not engaged.

The Court of Appeal dismissed the employer's appeal. Peter Gibson LJ, with whose judgment Buxton and Jacob LJJ agreed, observed that whilst the Directive was not as clear on this point as it might have been, it was tolerably plain that the intention was to focus on the activities of the worker. The judge concluded (para 37):

"… 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."

In this case it has always been conceded that regulation 21(b) applied although as we shall explain, that appears to have been because it was thought that the appropriate test was what the activities of the employer required.

The construction of regulation 21 in turn influences the correct interpretation of regulation 24. If when determining whether regulation 21 applied, the relevant activities to consider were those of the employer and not the worker, the right to a regulation 12 work break would be excluded in a significant number of cases where the employer could in fact readily organise the work so as to secure to the staff full regulation 12 breaks. They would not be regulation 12 breaks because that regulation would have been disapplied; they would necessarily constitute "equivalent periods of compensatory rest" under regulation 24(a) even though in every sense identical to regulation 12 breaks. It would then be necessary for the tribunal to ask, in the context of applying regulation 24, whether there were objective reasons why the working arrangements could not be arranged so as to secure a full break. However, since the focus is on the worker's activities, that question has to be considered at the prior stage of determining whether regulation 21 is engaged at all. It follows that the concept of an equivalent period of compensatory rest under regulation 24(a) cannot be a period identical to a regulation 12 break. It is something given in place of that break. Precisely what form any alternative arrangement can make whilst still falling within the scope of regulation 24(a) is an issue arising in this appeal.

In Gallagher, once the court had determined that regulation 21 did not dis-apply regulation 12, the issue was whether the break afforded to the workers complied with the requirements of that provision. The Court of Appeal had regard to two decisions of the ECJ, SIMAP v Conselleria de Sandidad [2000] IRLR 845 and Landeschauptstadt Kiel v Jaeger [2003] IRLR 804, which establish that when a worker is required to be on call at his place of work so that he can resume duties when required by his employer, that will still count as working time even if the worker is entitled to sleep whilst awaiting the employer's summons. It was argued for the employer that working time and rest breaks were not mutually exclusive, but Peter Gibson LJ, by implication at least, rejected that submission. He held that the characteristics of the break granted in that case did not amount to a regulation 12 rest break, and that was so even if in fact the employee had an uninterrupted twenty minute period of downtime (para 50):

"… 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.

The litigation in this case has had a somewhat chequered history. The original claim to the Employment Tribunal was lodged over 4 years ago in June 2007. Initially the appellant claimed that he was entitled to a break under regulation 12, or alternatively under regulation 24. However, he did not pursue the regulation 12 argument before the Tribunal because it was accepted that the appellant was covered by the exception in regulation 21(b). Accordingly, the arguments below were advanced on the premise that the rights conferred by regulation 12 were inapplicable and that the source of any rights was therefore regulation 24.

The argument before the first Employment Tribunal took on a very different hue from that now relied upon. The parties were agreed that the only relevant provision was regulation 24(a) and that paragraph (b) was not in issue. The employers contended that they had provided equivalent compensatory rest by allowing the appellant his full rest after his shift had ended, that is during the daily rest periods available to him. Not surprisingly the Tribunal rejected that submission, holding that if possible any compensatory rest had to be taken during working time. The Tribunal re-listed the case for a hearing to determine whether the claimant had been afforded where possible an equivalent period of compensatory rest during his working time and if not, to consider what, if any, compensation was payable.

The employer appealed to the EAT. Although they succeeded in aspects of their appeal, they again failed in their argument that the compensatory break could be given during the rest period immediately following the completion of the shift. In the course of his judgment in the EAT, Silber J (presiding) set out the way in which tribunals ought to approach regulation 24 (para. 31):

"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]".

The EAT then formulated four issues to be considered by the Tribunal on remission. The first two essentially reflected the two stage test which the Tribunal had identified:

...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.

In fact, the first issue as originally formulated by the first EAT said "falls outside his shifts" rather than "within his shift". The EAT on the second appeal pointed out that this was not apparently what had been intended. There is no doubt that this was an error by the first EAT, as everyone accepts, and that the issue as reformulated by the second EAT - which is how we have set out the issue above - is the correct one and it is how the issue was understood by the second Employment Tribunal on remission.

There were two more issues also identified by the first EAT which were considered by the Employment Tribunal on remission. They both went to the assessment of compensation payable if a breach were established. However since no breach was established in either the Employment Tribunal or the EAT, the issue of compensation did not strictly arise.

We agree with the EAT's approach to regulation 24 as set out above. However, the EAT wrongly focused on the employer's activities when determining whether regulation 21 applied (no doubt because it does not appear to have been referred to Gallagher on this point). It directed the Tribunal to consider in the context of determining whether regulation 24(b) applied whether the employer could organise the work shifts so as to allow a full Gallagher break. For reasons we have given above, in our judgment that is a false analysis. If working arrangements can be made so as to enable the worker to carry out his duties without his permanent presence being required throughout his shift, regulation 21(b) is not engaged. That issue ought not to be considered in the context of regulation 24.

The conclusions of the Employment Tribunal on remission.

As to the first issue, the argument before the Tribunal was largely directed to the question whether there were objective reasons which made it not possible for a Gallagher break to be given during the shift. The implicit assumption was that since regulation 12 had been disapplied, this would amount to an equivalent period of compensatory rest. The Tribunal considered various possible ways in which such a rest period that might in theory have been provided. These included employing a mobile guard who could provide cover across various single manned sites when a break was necessary; twinning or pairing guards so that one would always be available when another took a break; and by the client, Orange, providing the necessary cover from its own employees.

The Tribunal rejected each of these, not merely on the grounds that they were unduly costly, but also because they would impose administrative and logistical difficulties for the employers. Any of these arrangements could potentially jeopardise the employer's ability to undertake the contract which could in turn threaten the appellant's job. The Tribunal rejected in terms a submission from the appellant that the employers were in reality relying solely on financial considerations, which the Directive, in Recital 4, states is not a legitimate factor. It said this (para 41):

"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."

The Tribunal also considered a suggestion from the appellant that he should be given time off in lieu after the shift had ended. Ironically, this submission reflected the argument unsuccessfully advanced by the employer at the first Employment Tribunal save that the appellant was seeking to be paid for the break. The Tribunal did not consider that this was an appropriate solution. It was inconsistent with the objectives of the Directive since it was not an arrangement designed to protect the health and safety of the worker concerned. Effectively it was simply buying out the employee's right.

In reaching its conclusion that there were objective reasons for not providing a Gallagher break, the Tribunal made reference a decision of the ECJ, Adeneler v Ellinikos Organismos Galkatos [2006] IRLR 716, where the concept of objective reasons had been discussed. That case was concerned with a different Directive, the Fixed Term Work Directive. The ECJ observed that the concept of objective reasons had to be considered in the light of the objective of the relevant legislation. Having regard to that principle, the Tribunal considered that in determining whether the equivalent period of rest was "not possible" in regulation 24, it should have regard to all the objectives of the Directive. In that context it said this (para 38):

"… 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".

Having concluded that there were objective reasons why the full Gallagher break could not be afforded to the appellant, the Tribunal went on to consider the second issue, namely whether the employer had complied with paragraph (b) and had afforded such protection as may be adequate to safeguard the health and safety of the appellant. It concluded without difficulty that the employers had satisfied that test. It identified the characteristics of the arrangement in place and noted that there were times when there was in fact a complete 20 minute break without interruption. It observed that whilst it was only possible to say with hindsight that it was in fact uninterrupted, nonetheless this provided appropriate protection, particularly when the arrangement permitted any interrupted break to be resumed.

The appeal to the EAT.

The employee then appealed to the Employment Appeal Tribunal (The Honourable Lady Smith presiding). On this occasion the employers cross-appealed and contended for the first time that the arrangements which had been put in place, and which the Employment Tribunal had found satisfied the provisions of regulation 24(b), in fact fell within regulation 24(a) itself. This was not a possibility that had been considered by the Employment Tribunal since the case had been argued before them on the basis that this was a regulation 24(b) case once it had been established that a full Gallagher break was not possible. The EAT allowed this argument to be advanced and were persuaded by it. They gave their reasons as follows (para 13):

"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 [2006] IRLR 716."

The EAT limited the scope of regulation 24(b) to cases where no paragraph 24(a) rest could possibly be provided during the shift. In those circumstances the employer would have to afford such protection as was appropriate to safeguard health and welfare. The EAT gave by way of example structuring the way in which the work is organised during the shift and providing health checks for workers.

The EAT concluded that the findings of the Tribunal properly demonstrated that it was not on the facts possible for the work to be arranged so as to allow a full Gallagher rest break during the shifts. Although the arrangements fell marginally short of that, because it was not known in advance whether the rest break would be interrupted, nevertheless the EAT was fully satisfied that it was an equivalent period of compensatory rest falling within regulation 24(a). The arrangements put in place met the criteria of equivalence and compensation:

"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 EAT went on to find that, if it was wrong about the break falling within regulation 24(a), it in any event satisfied the requirements in paragraph 24(b). In that context the EAT considered a submission from the appellant which had not, in terms, been addressed by the Employment Tribunal, namely that the arrangements could not satisfy paragraph (b) unless there has been a risk assessment under paragraph 3 of the Management of Health and Safety at Work Regulations 1999. This provision requires employers to carry out risk assessments for each of their workers. It was not disputed that such an assessment had been carried out in respect of the appellant, but the argument addressed to the EAT, and repeated before us, is that there should have been a specific assessment of the risks to health and safety resulting from the fact that the period of rest afforded to the appellant might be interrupted.

The EAT rejected that submission on the grounds that whilst an employer might choose to include a risk assessment of that nature, there was no obligation for him to do so under the Regulations. So it found that even if contrary to its preferred view the arrangement for a break did not fall within regulation 24(a), the Employment Tribunal had been entitled to find that it satisfied the requirements in regulation 24(b).

The grounds of appeal.

The grounds of appeal can usefully be analysed in three categories. First, it is submitted that for both procedural and substantive reasons the EAT was wrong to find that the breaks afforded to this appellant fell within the terms of regulation 24(a). Second, it is alleged that the Employment Tribunal was wrong to find that there were objective factors justifying the failure to provide the appellant with his full Gallagher rest break. Third, so far as regulation 24(b) is concerned, the appellant submitted that the arrangements could not be justified under that provision both because this was not an exceptional case as that provision requires, and also because the arrangements put in place could not be said to have afforded appropriate health and safety protection.

For reasons we have already given, the submissions falling into the second category, which are designed to show that there was no good reason why the appellant should not have been given a regulation 12 break, are not material to the regulation 24 issues. They go to the question whether regulation 21 was engaged at all, and it was conceded that it did. It seems that the concession was made on the false premise that regulation 21(b) applied because the employer's activities required a permanent presence. However, we shall consider the points as if the complaint had been that regulation 21 was not engaged, and therefore regulation 12 was not disapplied, because it was not necessary for the employer to require the appellant to be on duty throughout his shift.

The grounds advanced in the third category do not arise at all if the EAT was correct to conclude that the arrangements fell under paragraph (a) and not paragraph (b).

We will now consider the various grounds in turn.

Did the breaks fall within regulation 24(a)?

The first point arising in the appeal is whether the EAT was entitled to conclude that these arrangements were capable of falling within regulation 24(a). Mr Gray-Jones, who represented the appellant, submitted as a preliminary point that the EAT ought not to have allowed this point to be advanced at all since it had been conceded in the Employment Tribunal that the arrangements actually put in place could only be lawful if they fell within paragraph (b). He relied upon the decision of the Court of Appeal in Jones v Governing Body of Burdetts School [1999] ICR 38 where Robert Walker LJ, as he then was, said this, after referring to a number of authorities (p.44A):

"…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."