United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CASPAR GLYN (of Counsel) Instructed by: Messrs Simons, Muirhead & Burton Solicitors 8/9 Frith Sterner Soho London W1 D3JB
For the Respondent	MR DAVID GRAY-JONES Solicitor Messrs Thomas Mansfield LLP Solicitors Unit 2 Ground Floor Christopher Wren Yard 119 High Street Croydon Surrey CRO 1QG


 


SUMMARY

WORKING TIME REGULATIONS

1. The claimant, who worked as a security officer, made a claim for compensatory rest under the Working Time Regulations.
2. Under regulation 12 of those regulations, it is provided that "where a worker's daily working time is more than six hours he is entitled to a rest break". Such a break is for 20 minutes where, as in the present case, there is no collective agreement or workforce agreement in force.
3. Security guards fall outside these provisions but regulation 24 provides that:

"Where the application of any provision of these Regulations is excluded by regulation 21 or 22… 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".

4. The issues are:

A. if under the 1998 regulations, a worker was entitled to a rest break for each period of six hours which he works or whether he is only entitled to one period of rest for however long he works in excess of 6 hours (Issue A);

B. In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (Issue B); and

C. Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? (Issue C)

5. As to issue A, a worker is entitled to one period of rest for how ever long he works in excess of 6 hours.
6. As to issue B, the Employment Tribunal has to adopt 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]".
7. As to issue C, a claim can only be made in respect of a prescribed period of 3 months from the time when the claimant should have been given a compensatory rest period unless the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply in which case the prescribed period is extended to six months.


 


THE HONOURABLE MR JUSTICE SILBER

I. Introduction and the Regulations

8. Mr. David Hughes ("the claimant") started working as a security guard employed by The Corps of Commissionaires Management Limited ("the respondent") on 12 September 1994. On 23 July 2006, the claimant raised as a grievance with the respondent the issue of his entitlement to rest breaks and to compensatory rest periods. On 18 October 2006, the respondent answered the grievance. On 6 June 2006, the claimant issued his claim form in the Employment Tribunal. In this judgment, we will refer to the parties by the roles they had in the Employment Tribunal.
9. By a judgment dated 19 February 2008 the Employment Tribunal sitting at London South decided that:

"a) The claimant's entitlement whenever possible to an equivalent period of compensatory rest under regulation 24 of the Working Time Regulations 1998 ("the regulations") is not met during rest periods available to the claimant but must be allowed by the respondent whenever possible during a period which would otherwise be the claimant's working time";

b) The matter was "to be re-listed so as to consider whether the respondent had afforded the claimant whenever possible an equivalent period of compensatory rest, and if not, whether the respondent is liable to the claimant for any compensation"; and

c) The claim for compensation was to be limited to a period of 3 months before the claim form was presented to the Employment Tribunal on 6 June 2007."

10. The respondent appeals against the findings (a) and (b) while the claimant cross-appeals against the order (c).
11. The regulations sets out a code of minimum rest periods for workers, who are entitled to a minimum daily rest period (regulation 10), a longer rest period in any one week or fortnight (regulation 11), and rest breaks during the course of the working day (regulation 12).
12. Regulation 12 contains the provisions in respect of rest breaks. It provides that:

"(1) Where a worker's daily working time is more than six hours he is entitled to a rest break

(2) The details of the rest break to which a worker is entitled under paragraph (1) including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement."

13. If there is no collective or workforce agreement in force, as in the present case, regulation 12(3) provides (insofar as is relevant) that:

"…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."

14. The Court of Appeal in Gallagher v Alpha Catering Services [2005] ICR 684 clarified what was meant by a regulation 12 rest break when Peter Gibson LJ, who gave the only reasoned judgment and one with which Buxton and Jacob LJ agreed, explained at page 684 A-B that:

"… 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."

15. As the respondent is a security guard, regulation 21 is relevant and it provides (insofar it is material) that:

"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 or security firms."

16. It is common ground that this means that the claimant falls outside the provision of regulation 12 but the position of those like the claimant who are excluded by regulation 21 is
    

dealt with in regulation 24 which (insofar as is relevant) provides that:

"Where the application of any provision of these Regulations is excluded by regulation 21 or 22… 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".

II. The Agreed Factual Matrix and the Issues.

17. The following facts were among those agreed and they were that:

a) Regulation 21(b) ("the security activities exemption") of the regulations applied to the claimant's work;

b) The claimant was not entitled to rights under regulation 10 (daily rest), regulation.11 (weekly rest) and regulation12 (rest breaks);

c) The claimant was entitled under regulation 24 to compensatory rest;

d) The claimant was always required by the respondent to work during the period which would otherwise have been his rest breaks; and

e) The claimant was not paid for any compensatory rest.

18. This appeal raises the following issues:

A) if under the 1998 regulations, a worker was entitled to just one compensatory rest or rest break for each period of six hours which he works or whether he is only entitled to one period of rest for how ever long he works in excess of 6 hours (Issue A) (See paragraphs 12 to 16);

B) In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (Issue B) (See paragraphs 17 to 33);

C) If the claimant is entitled to a compensatory rest, is he entitled to be paid? (Issue C) (See paragraphs 34 to 38); and

D) Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? (Issue D) (See paragraphs 39 to 42).

III. Issue A Under the 1998 regulations, is a worker entitled to just one compensatory rest or rest break for each period of six hours which he works or whether he is only entitled to one period of rest for how ever long he works in excess of 6 hours?

19. The Employment Tribunal dealt with this point by saying (with underlining added) that:

"10. In circumstances where the claimant had been compensated with periods of rest equivalent to the 40 minutes per day which Mr Glyn conceded the claimant was entitled to, the respondent had not breached the regulations. The claimant had been compensated for what he had lost and the regulations did not provide for any loss of compensatory rest to be compensated for in terms of money."

20. It is common ground that the Employment Tribunal made an error in adopting a concession which it says was made by the respondent because no concession was actually made. What the respondent's written skeleton argument actually stated was:

"for the purposes of consideration of C's claim it is not conceded that C is entitled to 40 minutes every 12 hours but let us, for the sake of argument, set out that he is."

21. As it was conceded that the Employment Tribunal erred on this issue, we heard submissions on this issue. Mr. David Gray-Jones for the claimant contends that a worker was entitled to one compensatory rest or rest break for each and every period of six hours which he works while Mr.Caspar Glyn counsel for the respondent contends that a worker is entitled to only one break for however long he works in excess of six hours.
22. We have concluded that the respondent is correct because:

A) Regulation 12 (1) provides that that if the worker's "daily working time is more than six hours, he is entitled to a rest break". The use of the indefinite article show that the entitlement is for just one rest break;

B) The entitlement is only triggered by exceeding six hours work and there is no further triggering event set out in the regulations; and

C) If, as the claimant says is the correct position, a worker was entitled to just one compensatory rest or rest break for each period of six hours which he works, this would require rewriting the regulation to add additional words and no cogent reason has been put forward to justify this approach.

23. The decision of the Employment Tribunal was incorrect on this issue as the claimant was only entitled to one break for however long he works in excess of 6 hours.

IV. Issue B. In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24?

(i) Introduction

24. In dealing with this issue, we will first consider the EC's Council Directive 2003/88/EC ("the Directive"), which is commonly called the Working Time Directive and then the contentions under article 24 of the regulations before reaching our conclusion.

(ii) The Directive

25. The regulations were made pursuant to the Directive. Our starting point is that the purposes of the Directive according to its preamble included ensuring that:

"all workers should have adequate rest periods, community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks" (paragraph (5),

and that

"the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations"

(paragraph 4).

26. Mr. Gray-Jones points out that there is authority that the health and safety requirement should be construed widely (see Landeshauptstadt v Jaeger [2003] IRLR 804). The genesis of regulation 24 is article 17 of the Directive, which provides first that derogations from the requirement to give workers rest breaks set out in article 4 of the Directive could be granted in the case of, among other groups, security workers, but second that those subject to the derogations (with capital letters inserted for ease of reference):

"shall be allowed subject to the condition that [A] the equivalent compensatory rest periods are granted to the workers concerned or [B], in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection."

27. There are slight differences between these provisions and regulation 24(a) of the 1998 regulations which imposes an additional requirement when unlike the part of the regulation marked [B] it states (with my emphasis added to show the additional requirement) that "his employer shall whenever possible allow him to take an equivalent period of compensatory rest".
28. The importance of an EC directive when construing regulations made under it was considered by the European Court of Justice in Pfeifer v Deutsches Roten Kreuz … [2004] ECR-I 8835: which stated that:

"113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC see to that effect, inter alia, the judgments cited above in Von Colson and Kamann, paragraph 26; Marleasing, paragraph 8, and Faccini Dori, paragraph 26; see also Case C-63/97 BMW [1999] ECR I-905, paragraph 22; Joined cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores".

29. Not surprisingly, there was no suggestion in the submissions that the difference between article 17 of the Directive and regulation 24 is of any material importance to the outcome of this appeal because in both cases it is necessary to consider whether it was not possible for objective reasons to grant an equivalent compensatory rest period .It is now appropriate to consider the respondent's submissions as to why the appeal should be allowed.

(iii) The Respondent's case

30. The respondent's case is that the claimant does not fall within either part of regulation 24 because it is common ground that he, that is the claimant, falls within the
    

provisions of regulation 21(b) as he is (with underlining added):

"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… ."

31. The argument of Mr. Glyn continues that because of those obligations imposed on the claimant, it is not possible for him to take an equivalent period of compensatory rest with the consequence that he has no entitlement under regulation 24 a). It is also said on behalf of the respondent that this means that any compensatory rest will depend on the application of regulation 24(b). This means that consideration has to be given to as to what steps the respondent could take (in the words of regulation 24(b)) to "afford [the claimant] such protection as may be appropriate in order to safeguard the [claimant's] health and safety". The submission of the respondent continues that this has to be considered in the light of the fact that as the claimant falls within regulation 21(b) as a security worker, who in the words of regulation 21(b) is a person whose permanent presence is required. So it is contended by the respondent that applying regulation 24(b), it must be concluded that there is no protection which could be given to the claimant or any other security worker other than rest periods between working shifts. In other words, the claimant as a security worker is not entitled to any compensatory rest as he does not fall within either regulation 24(a) or 24(b) because of the impossibility of him being able to take compensatory rest. That would mean that the claimant would fall outside the provisions of regulation 24 and so it is said by the respondent that the claimant could not take a compensatory break of any type which means that his breaks would only be between shifts.
32. We are unable to accept this submission for three reasons. First, contrary to Mr. Glyn's submissions, regulation 21(b) (which we have set out in paragraph 8 above) applies if the presence of somebody (but not necessarily the claimant) is required. The wording of that regulation is that "a permanent presence" is required of somebody but, not necessarily, the claimant. In other words, it might well be possible for somebody else to perform the claimant's functions as a security guard when he is taking his compensatory rest and so the argument that it is impossible for him to take compensatory leave is not correct. That means the basis of the respondent's submissions on this point fails as it is based on the impossibility of the claimant being able to take compensatory rest.
33. It is noteworthy that one of the members of this Appeal Tribunal, who heard this case and who has substantial industrial experience, knows of cases where the security officers are in practice able to take a break as a member of the employer's staff is able to stand in for him when he takes his compensatory rest. Again, it might be possible for the respondent to provide some security cover (perhaps by another security officer) for the claimant if he were to take a compensatory break. We have no idea if these or any other forms of cover for the claimant could be made available. This issue will have to be considered at the next hearing when the Employment Tribunal will have to consider if the claimant's case is an exceptional case in which it is not possible for objective reasons to make arrangements under which the claimant would be allowed to take a compensatory rest.
34. Second, the term "compensatory rest" means something over and above the rest to which the claimant is otherwise entitled between shifts, which is what the respondent submits is the claimant's entitlement under regulation 24. We do not think that merely allowing a security person to take his previously arranged rest periods after his shifts would be compensatory. The Concise Oxford English Dictionary defines "compensate" as "balance the bad effect ... make up for …". It is difficult to see how a decision which results in the claimant not receiving anything other than his existing right to rest between shifts giving any more rights to the claimant than he previously enjoyed could be a compensatory benefit for the loss of a rest period.
35. Third, it must not be forgotten, as we have already explained in paragraph 18 above the regulations were enacted pursuant to the Directive, which has as its aim as expressed in its preamble the wish to provide a code to ensure that all workers have "adequate rest periods". It is necessary to construe the regulations with those aims in mind. They would be thwarted if a large group such as security workers were excluded from any form of compensatory rest. So the regulations should be construed so that such groups are not excluded from taking advantage of their rights. This means that in cases in which regulation 24(b) applies, the Employment Tribunal in the words of regulation 24(b) should consider with care what steps an employer should take "to afford the [worker] such protection as may be appropriate to safeguard the worker's health and safety". It simply is not appropriate to conclude at this stage, that there are no steps which could be taken to afford the claimant his very important form of protection as the respondent submits that we should.
36. We have already explained that the case for the respondent is that the compensatory rest can be and indeed has to be taken between shifts. For the reasons which we have sought to explain in paragraphs 25 to 28 above, we are unable to agree.

(iv) The Interpretation of Regulation 24

37. Regulation 24 (a) means that there is a general right to compensatory rest periods but that this right is subject to the exception in 24(b). That means that the employer shall allow the worker an equivalent period of compensatory rest except where it was "not possible for objective reasons to grant such a period of rest". If this were not so, the exception in regulation 24 (b) would be meaningless and it could never be invoked as no claims would fall outside the general rule in regulation 24(a). The use of the words "exceptional cases" in regulation 24(b) shows that regulation 24(b) is the long-stop provision which applies in cases falling outside regulation 24(a).
38. When considering regulation 24, the Employment Tribunal has to 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]".
39. None of the submissions made on behalf of the claimant show that this approach is incorrect and that the test under regulation 24(a) required the Employment Tribunal to consider if the claimant's case is in the words of regulation 24 one of those "exceptional cases in which it is not possible for objective reasons [to] grant such [an equivalent period of compensatory] rest". The Employment Tribunal in its order which we have set out in paragraph 2(a) above did not carry out this exercise because ii had been agreed by the claimant and the respondent that regulation 24(b) did not apply in the light of each of their totally different approaches to the interpretation of regulation 24. As we have explained, we are unable to accept either interpretation and or interpretation now requires a decision of the Employment Tribunal on the application of regulation 24(b) so these issues should be the subject of the future hearing in front of the Employment Tribunal.

(v) Conclusion

40. We conclude that the appeal should be allowed on this issue so that Employment Tribunal should be required to consider:

A) if whenever the claimant works for more than 6 hours, it was not possible for objective reasons 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 outside his shifts; and then

B) (in the event that 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.

V. Issue C. If the claimant is entitled to compensatory rest, is he entitled to be paid for it?

41. The Employment Tribunal explained in paragraph 28 of its Reasons that:

"We accept the submission of Mr Gray-Jones on behalf of the claimant, that a compensatory rest period has to be a rest period given in lieu to an employee of what would otherwise be working time and that in such circumstances the worker would be paid for such period because otherwise it would not amount to a period in lieu of what would otherwise be working time".

42. The respondent challenges the finding that the claimant is entitled to be paid for compensatory rest period. We must stress that in this case the issue is not whether the claimant should be paid in the future but whether the claimant should have been paid in the past. That also raises issues in relation to the application of regulation 30 which can only be determined after the respondent's liability has been decided by the Employment Tribunal.
43. It is pointed out that for example the regulations specifically provide for pay during annual leave (see regulation 16 of the Regulations) but that they do not contain similar provisions for pay for compensatory rest. It is true that the Directive and the regulations set out some rights of workers which must be complied with and which override many contractual provisions to the contrary; it is important that they neither purport to nor actually contain all provisions in all contracts of employment. This can be shown by considering the case where an employer had agreed to allow its workers a one-hour rest break when they work for a shift of five hours. This is considerably in excess of the periods set out in regulation 12 and to which we have referred in paragraphs 5 and 6 above. Yet it cannot be seriously suggested that the regulations override the agreed terms which are much more beneficial to the workers than the regulations.
44. Indeed where the regulations do not deal with a matter, then it is open to the parties to agree what their rights and duties should be. The issue of whether the claimant should be paid during his period of compensatory rest falls within this category.
45. Our difficulty in dealing with this issue is that we have no information about the claimant's contractual terms and no such term is referred to by the Employment Tribunal. We do not know if the claimant received pay if and when he took rest breaks before or after he made his grievance. So with reluctance, we have been compelled to conclude that we cannot deal with this issue properly. This matter will have to be considered afresh on remittance by the Employment Tribunal who hopefully will give reasons for their decision. Our provisional view is that we would find it difficult to see why it should not be paid otherwise we do not understand what meaning is to be attributed to the words "compensatory" or "protection".

VI. Issue D Could the claimant claim compensation for more than 3 months prior to the commencement of his claim?

46. The claimant contends in his cross-appeal that the Employment Tribunal erred in holding that it did not have jurisdiction to hear any aspect of the claimant's claim which was founded upon allegations which arose prior to 7 March 2007 bearing in mind the date of the presentation of the claim form was on 6 June 2007. The Employment Tribunal ruled that the claimant's remedy was limited solely to the period over which the Tribunal claimed it had jurisdiction.
47. In a letter dated 15 August 2008 to this Appeal Tribunal, the Employment Tribunal explained this decision by reason of the provisions of Regulation 30 which provides that:

"(2) An employment Tribunal shall not consider a complaint under this regulation unless it is presented:-

(a) before the end of the period of three months (or, in a case to which regulation 38(2) applies, six months) beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made;

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three or, as the case may be, six months."

48. It is not suggested that the claimant is entitled to an extension under sub-section (b) but the thrust of the complaint of the claimant is that the Employment Tribunal erroneously considered that the time limit for bringing a claim was the same as the period for which compensation could be ordered. We are unable to agree as regulation 30(2) means that the obligation of a claimant to bring a claim means as was explained in the Court of Appeal in a case where the breach involved was a failure to make a payment due under the regulations that in respect of the issue of when a claimant must bring such proceedings:

"he must do so before the end of the period of three months beginning with the date on which it is alleged that the exercise of the right should have been permitted to begin or the payment should have been made, subject to he power of the tribunal to extend time for such further period as it considers reasonable where it is satisfied that it was not reasonably practicable for the complainant to have been satisfied within the three month period."

(per Maurice Kay LJ in Inland Revenue Commissioners v Ainsworth [2005] ICR 1149 at 1158 with whom Kennedy and Laws LJ agreed.)

49. In this case, the claim had to be brought within the prescribed period of the time when the claimant should have been given a compensatory rest period. After judgment was sent to the parties in draft, the claimant contended that the period of three months was extended in this case to six months because such regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 applies. We have not heard full argument on this matter and the Employment Tribunal do not give full reasons on this issue. We consider that as this matter is, for the reasons we have explained, being remitted to the Employment Tribunal, it should also consider whether the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply so that the period for which a claim can be made by this claimant for a compensatory rest period is extended from a three-month period prior to the presentation of the claim to the Employment Tribunal to a six-month period prior to the presentation of the claim to the Employment Tribunal.

VII. Conclusion.

50. The appeal and the cross-appeal are allowed to the extent that the order made on 18 February 2008 should be replaced by an order that this matter should be remitted to a different Employment Tribunal (as the parties both agree that it should not be remitted to the same Employment Tribunal) for it to consider solely:

(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 outside his shifts;

(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 my be adequate to safeguard him;

(c) whether the claimant should receive pay from the respondent for his compensatory leave; and

(d) whether the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply so that the period when a claim can be made by this claimant for a compensatory rest period is extended from a three- month period prior to the presentation of the claim to the Employment Tribunal to a six-moth period prior to the presentation of the claim to the Employment Tribunal.