Mr A Wisdom v The Secretary of State For Justice: 3312322/2023

EMPLOYMENT TRIBUNALS

Case No 3312322/2023

Between

Mr A WisdomClaimant

The Secretary of State For JusticeRespondent

Before

Employment Judge Codd

Mr C Ilangaratne (instructed by Counsel) for claimant

Mr J Williams (instructed by Counsel) for respondent

Date 25 July 2025

JUDGMENT

[1]The claimant was engaged in “working time” during his stand-by period between 17.25pm and 01.00am between the 27th of March 2023 and the 3rd of April 2023.

[2]The claimant was denied appropriate compensatory rest periods by the respondent in breach of Regulation 24(a) and (b) of the Working Time Regulations 1998 during the above period.

REASONS

Evidence

[1]This is a reserved decision for the hearing taking place on the 22nd and 23rd of July 2025.

[2]The claimant is employed by HM Prison and Probation service. He brings proceedings related to a purported breach of the Working Time Regulations 1998 associated with his rest breaks, following out of hours working.

[3]He engaged with ACAS early conciliation between the 26th of June 2023 and the 7th of August 2023. He issued his claim on the 11th of September 2023. There is no dispute that the claim was brought in time.

The Background

[4]The respondent operates a number of “Approved Premises” (AP). These are supported living premises for offenders with licence conditions. Typically these are used following an offender being released from prison. The staff are managed by and area manager (APAM), which was the claimant’s role. As part of this role he can complete risk assessments, where an individual has breached a licence condition. He can also process a prison recall notice.

[5]During the day, the AP’s are staffed by a probation qualified worker. However, out of hours, those responsibilities are divested to a rota. This requires APAM’s on a rota basis to provide stand-by support for the AP, for 1 week blocks. Typically this is likely to occur every 4 weeks on average. The rota is a remote role and will involve phone calls and recall notices being processed by the APAM. It can also include advice to the AP staff. The stand-by workers are required to be able to travel to their AP premises within 1 hour, in the event of a serious incident (such as, death, fire, or significant unrest). With regard to the service provision this requires a 15 minute response time to calls placed to the stand-by scheme.

[6]To support this a collectively agreed contract has been implemented to address both the general working conditions, but also the stand-by rota. The stand-by scheme pays an allowance per week equivalent to £418 per week. This is divided into a shift allowance for the overnight period (17.00 to 09.00) Monday to Friday and two 24 hour periods at weekends. Although this payment is not evenly divided across the week, it is not the subject of this dispute. The background is not in dispute.

[7]The claimant argues that the entirety of the period (out of hours) is working time and therefore he does not receive his requisite rest breaks under regulation 10 of the WTR 1998. He argues that he suffers a degree of stress when on stand-by and the role curtails his private and family life flexibility.

The Law

[8]It is not disputed that any time within the stand-by period may become working time. Where there is active engagement with an AP the claimant was entitled to submit a claim for overtime payments. He did so regularly and these were paid.

[9]There is some discrepancy as to how he calculated his time for the payment, but these were routinely spot checked and universally approved by the respondent.

[10]The stand-by shift commences at 17:00pm when the probation staff at the AP leave. However, the claimant is contracted to work for his main role until 17:24pm. There is therefore an overlap. This decision considers the time after 17.24pm until 09.00am weekdays and at weekends (including bank holidays).

[11]It is common ground that it is theoretically possible for a worker on stand-by to be engaged to such a degree that they do not have an adequate rest break, and that there is no formal policy covering such a scenario. It is common ground that the claimant has on occasion started late after a stand-by shift, where his rest has been disturbed and this is actively supported by his line manager.

[12]In 2020 the claimant brought an almost identical claim, related to rest breaks during the stand-by period. That claim was dismissed by Employment Judge Parkin on the 18th of February 2022.

[13]There are two distinct periods within the stand-by period. A passive time where he is “on call” and an active time, where he is engaged on a call or with follow up actions. If the issue is serious, it may prompt an immediate recall of an offender to prison. In that situation the claimant would process the recall (supported by the AP) and then seek approval from an out of hours head of service (OOH). Once this has been achieved, he must then process the recall warrant application. Once the warrant is issued the process is complete. A recall process may involve somewhere between 1 to 3 hours to complete, depending upon third parties. There is time between each action that the claimant would be awaiting a call back from other people. It is also common ground that multiple cases may occur in the same period. The claimant would be responsible for three AP premises, covering approximately 80 offenders.

[14]For the purposes of this claim the relevant working period is the 27th of March 2023 to the 3rd of April 2023. For the purpose of each day he was engaged from 17:24pm in the evening Monday to Thursday and, and 17:24pm Friday until 09:00am Monday morning. As discussed above the claimant may have multiple cases ongoing which overlap, occupying his time. The table below sets out the time the claimant says he was engaged in each task. For the purpose of this calculation the claimant has included time between the first call and the last action as a continuous period of working time: Day Date Times engaged Total hours claimed overtime Monday 27.03.23 19:30 – 23:30 4 Tuesday 28.03.23 17:50 – 21:30 3.75 Wednesday 29.03.223(a) 19:00 – 19:45 1.42

(b) 21:05 – 21:30

(c) 23:10 – 23:35 Thursday 30.03.23 (a) 20:35 – 22:15 2.25 (b) 22:00 – 22:20 (c) 00:35 – 00:50 Friday 31.03.23 (a) 18:25 – 18:45 2.33 (b) 20:00 – 22:20 (c) 22:05 – 00:30 Saturday 01.04.23 (a) 09:35 – 09:50 6.5 (b) 13:00 – 13:30 (c) 15:10 - 18.30

(d) 19.23 – 22.30 Sunday 02.04.23 (a) 20.10 – 20.50 2.42 (b) 20:30 – 22.00 (c) 20:40 – 22:15

[15]The claimant also argues that he would be engaged in minor or incidental management calls, which were not recorded or claimed in addition to the above. The respondent disputes whether the block of time claimed by the claimant is the correct way of recording the “working time”. They have argued it should be broken down into the time for each individual task, and any time between each task should be considered ‘rest time.’ The claimant disputes that the whole period of stand-by time is working time, however, it accepts that the claims set out in the table were paid as overtime for the continuous hours claimed.

The Issues

[16]The parties are agreed that there are essentially four issues for the Tribunal to determine: i. Should the stand-by time be considered working time for the purpose of regulation 10 WTR 1998, and if so to what extent? ii. Do any of the exceptions apply to Regulation 10 WTR 1998? iii. Is the respondent in breach of Regulation 10 WTR 1998? iv. If an exception applies, has the respondent provided compensatory rest periods in accordance with Regulation 24 of the WTR 1998.

Legal Principles

[17]Both parties have submitted extensive written submissions and an agreed authorities bundle. There are 13 authorities referred to by the parties as well as a previous first instance decision involving the claimant. I have considered the matters raised by the parties even where not expressly referred to. For brevity, I shall refer to relevant case law, within my analysis, where I consider it relevant or prudent to do so. However, both parties agree that a factual analysis of the individual circumstances is required.

[18]The relevant statutory principles are contained in the Working Time Regulations 1998. I have considered the relevant passages below.

[19]Regulation 10 (1) provides that a worker should have rest break of 11 consecutive hours within a 24 hour period.

[20]Regulation 21 provides exceptions to the application of Regulation 10(1) in certain circumstances. The circumstances relied upon here are:

[21](1) (c) where the worker’s activities involve the need for continuity of service or production, as may be the case in relation to— (i)services relating to the reception, treatment or care provided by hospitals or similar establishments (including the activities of doctors in training), residential institutions and prisons; …. (e)where the worker’s activities are affected by— (i) …. (ii)exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer; or 21. Regulation 23 applies where a collective agreement is in force which varies the provision of regulation 10.

[22]Where an exception in Regulation 21 or 23 applies to this case, the Tribunal must go on to consider whether the previsions of compensatory rest are made out under Regulation 24: “24 Where the application of any provision of these Regulations is excluded by regulation 21 or 22, or is 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.”

[23]The standard of proof is the balance of probabilities.

Evidence

[24]I have heard evidence from two witnesses. The claimant and Ms Orlebar, the claimant’s line manager. Ms Orlebar had both the knowledge of the claimant’s role, as she had previously completed the role and as acting as OOH for recall decisions. Both witnesses were extremely helpful in assisting my understanding of the process. Both witnesses were fair to each other making concessions where needed. They presented as a united team, in terms of their professional functions and how they should be discharged, although they differed in some interpretations of the restrictions and requirements of the role. The integrity of both witnesses was clear.

[25]I also found both witnesses to be credible. Neither witness lied to me or attempted to mislead me. They both had clear and understandable positions. I shall consider the robustness of those positions in more detail below.

[26]I have been assisted by both advocates. They have cross examined the witnesses fairly and covering the relevant issues. They have both produced extensive written submissions overnight, and both spoke to those documents at length. At 12.30pm on the 23rd of July 2025, I reserved my decision having completed all of the submissions. All parties sought for a written determination in this matter. Both advocates experienced persistent technological difficulties with the CVP link at points (through no fault of their own). Both continued with stoicism, and I am grateful for their efforts in ensuring the hearing could continue.

[27]There has been a collaborative atmosphere to this case, both from the lay parties and the advocates. It is reflective of the parties common desire to continue a productive and friendly working relationship. Where there is a disagreement, it has been respectful and set out clearly in each parties evidence. No criticism can attach to any party for the conduct of these proceedings, or for the claimant in seeking a determination, of what is a complex and nuanced matter.

[28]In addition to the above I have also considered the bundle of evidence and witness statement bundle. I have been directed throughout by the parties to the salient issues and documents. Preliminary issues

[29]On the 6th of April 2022, Employment Judge Pickup issued a Judgment (2307665/2020) involving both parties, in the following terms: “The Judgment of the Tribunal is that the claimant was not working as working time and thus was not denied rest periods throughout the whole of his stand-by duties from 18 June to 17 September 2020. His claim is therefore dismissed.”

[30]The claim brought by the claimant was essentially the same, that his stand-by shift should be considered as working time, in its entirety. I was unaware of these proceedings, or their relevance until I was provided with the authorities bundle on the morning of the second day. At the outset of the submissions I invited the parties to consider whether there were any issues which were “res judicata” (a matter decided), in terms of that decision. Essentially, I sought parties to outline any findings of fact which I could not go behind.

[31]The collective view of the advocates was that this was not a res judicata issue. Whilst the principle that was litigated was in effect the same, and there were a good deal of agreed facts found, these related to the factual matrix of the engagement, and were aligned with the evidence that we had heard in this case. It was agreed by both parties that, the period of time examined by the Tribunal in the previous decision was during the pandemic. This operated as a unique period of assessment, rather than a real world operation for the stand-by period.

[32]Mr Williams discussed whether there were findings amounting to “issue estoppel” as summarised by Sumption LJ in Virgin Atlantic Airways V Zodiac Seats UK Ltd

[2014] AC 160

. He discussed a number of the findings made as to the operation of the stand-by scheme. He conceded that some of the findings were relevant, but the nature of the decision was such that I was not prevented from determining this case on its facts. He argued that the overall decision was a positive factor to weigh in the respondent’s favour.

[33]Having heard those helpful submissions, and considered the decision of Employment Judge Pickup, I find that I am able to determine the facts of this case on its own merits. I take notice of the previous decision. Paragraphs 6.7 to 6.14 of that decision deal largely with evidence which has been mirrored in these proceedings. The legal argument and authorities relied upon, again largely mirror these proceedings. The previous determination that the stand-by period was not “working time”, is a matter which I must place some weight upon in my determination, but it does not prevent me deciding something different, based upon the evidence before me. No party seeks to persuade me otherwise. Findings and Analysis Issue 1 - Should the stand-by time be considered working time for the purpose of regulation 10 WTR 1998, and if so to what extent.

[34]During the course of the evidence the claimant has explained the stress he has encountered during the stand-by time. He argued that he could not switch off. He also argued that he had to be at home to take calls and access his laptop. He set the scene that his rest time and activities were restricted.

[35]Ms Orlebar discussed her experience of the stand-by and the fact that she was able to go out of an evening and was able to function relatively normally. She described being able to action matters from a quiet place and with a mobile phone. She said she would not need to access the system and emails and calls from her phone would be sufficient.

[36]It is common ground that travel was restricted and that the claimant needed to remain within one hour of the AP’s he was covering, in case he needed to attend. Such attendance is very rare, but it does occur. There is an agreed geographical restriction to his movements.

[37]At paragraph 6.9 and 6.10 of the 2022 decision the following findings were made: “6.9 Despite the reference to being required to perform stand-by duty at home (at 6.6, paragraph 8 above) the claimant was not expected to remain at home throughout the time he was on stand-by. However, he needed to be available to take and deal with telephone calls from staff at the APs, which may involve making further telephone calls or dealing with email correspondence and even, in rare instances, returning to the AP to deal with issues. This obviously meant being somewhere with good mobile phone coverage. Since the fitness for duty requirements applied, he could not drink alcohol and, in any event, might need to drive to an AP. 6.10 He had to deal with calls confidentially and to have access to the respondent’s OASYS offender risk assessment system and to the NDelius dayto-day case management records of the resident which may need to be updated. Whilst not a specific requirement off the respondent to have his laptop with him at all times when on stand-by, this effectively meant he needed to be near his laptop and where there was good internet reception since he could not access these databases by mobile phone.”

[38]The evidence I have heard is consistent with that analysis. Although Ms Olebar was clear she could do matters on her phone, she made reference to sending emails, and asking others to add to the system. She said she expected the notes required of the claimant as part of the stand-by shift to be completed during the stand-by shift and that it was reasonable to do so, rather than leaving it to the next working day. She conceded that, if at home she would log on to her laptop where needed. No one has suggested that the notes could be completed solely on a mobile phone.

[39]There were also obvious restrictions placed on him when receiving a call. The claimant discussed one call he received where an offender had stabbed someone in the head. Clearly such a call could not be undertaken in a public place, or for example around a family member. These matters are sensitive and their occurrence is completely unpredictable. There is little doubt in my mind that once a call was placed to the claimant, it would lead to a curtailment of normal resting activities. How long this endured is the subject of the debate.

[40]Within the collective agreement is a payment of £418 per weekly stand-by allowance, paid for each stand-by week. No one has been able to identify what this payment is for. Whilst I have been pointed to the collective agreement, it doesn’t explain what it is. In submissions, I suggested to the advocates that it may fall into three broad categories:a. Consideration for a contract variation,

b. Remuneration for amenity loss,

c. Wages.

[41]Mr Williams has advocated that it is not necessary to make a finding on this payment, and indeed the previous decision does not either. I disagree. There is to my mind an obvious purpose for this payment. It is a contractual payment representative of the loss of amenity being on stand-by causes. Stand-by is an interference with private and family life. It causes inconvenience and additional costs to individuals. There are additional plans required to cover for dependants. The requirement to return all calls within a 15 minute period, means that there was an urgent need to respond to the call. The claimant may have to leave and travel to an AP. Such compensation is a factor in support of the stand-by time being working time. Physical time on a call is remunerated separately, so this points away form the payment being wages. It is not determinative, or persuasive, but it is nevertheless a factor which cannot be ignored and must attract some limited weight. Activities in stand-by time

[42]During the course of cross examination the claimant was taken both to the week in question, but also to a variety of his time recording for his other stand-by weeks completed between 2022 and 2023. In total he completed 20 weeks, half of which were contracted and half of which were voluntary. I accept the claimant’s evidence that he volunteered to help the team out and to spread the burden.

[43]At page 314 of the bundle is a spreadsheet of the weeks worked. In places this is hard to interpret. There has been little opportunity to check the forensic veracity of this document. Some weeks are hard to interpret as to whether the data was available. The data for 2023 doesn’t appear to be included. Some weeks show as an n/a in terms of the data. For 2022 there are 14 weeks of completed data. This shows that the claimant was called after 01.00 am on at lease 8 separate occasions. He was called after 23.00pm on 18 separate occasions. It does not break down the number of calls occurring prior to this time. It doesn’t break down what the calls are, or their duration. Approximately 26 recalls (to prison) are noted. It is a crude document and its statistical reliability has not been tested or probed by either side. However, it is of some value.

[44]If I take the data of disturbances 10/14 weeks showed a call after 23.00pm and 5/14 after 01.00am. 23.00pm is an important time, as the consensus was that there was a normal curfew at this time. Therefore, if an offender was late returning, it would normally be after 23.00pm, for a curfew breach. Taking the 14 week period as a guide there were 98 stand-by days in this time and a total of 26 disturbances after 23.00pm at night (including those after 01.00am). As a very crude analysis, that makes a probability of being disturbed after 23.00pm at night to be something around 1 in every 3.7 days. The evidence of a week where there is no call after 23.00pm only occurs twice on this schedule.

[45]As I have said, it is a crude spreadsheet. Its reliability of the time involved is absent. However, it does show a realistic probability of late night working (which would disrupt an 11 hour continuous rest break. It is also limited positive evidence that the stand-by period is working time.

[46]In his evidence the claimant stated that of late there had been an increased use of curfews at an earlier watershed, 19:00pm to 21:00pm being common. I accept that evidence. Although Ms Orlebar disputed this, it is clear from taking a sample of the notes that there are varying curfew times being applied. For example 301 of the bundle shows a 22.00pm curfew. 311 of the bundle shows a 19.00pm curfew. I also note that there are a snapshot of calls of a management nature (such as sorting out absences or shifts within the AP) at varying times. All of this adds weight to the concept of the stand-by period being working time

[47]There are clearly historic days when he receives no calls. There is no disruption to his rest time on these occasions and that counts positively to this being “rest time”. There are historic days when he only receives one call, of simple resolution. Again this is supportive of the rest of the time being rest.

[48]However, the balance or majority of the calls often require call backs and the issues regularly continue for an hour or more until resolution. It is clear that not all calls are recorded in the logs. At 274 of the bundle the claimant provides a snapshot (in 2021) of two matters where he participated in 12 and 17 calls respectively. He offered this justification to support his argument that the overtime pay should run from the first call to the last, rather than be interspersed with rest breaks.

[49]Each call is different. But there is a high frequency and probability of matters which require multiple calls over an evening. That fact is not known until the first call is received. Once a call like this is placed, the claimant knows that he is going to receive or make further calls, it is just a matter of when. Some of the calls are an hour or more apart. Some take only 10 minutes to be returned. It was accepted by Ms Orlebar that there is an unpredictability to the wait. Knowing that such a call will come is in my finding disruptive to rest time.

[50]On balance, I prefer the claimant’s formulation that he is working between the first and the last call. He has notes to complete, which it is expected that he does during this time. If he were out, he would be expected to record these notes once he returned to a place that this was convenient. Many of these calls may result in a recall, with the claimant having to make follow up calls, and ultimately a recall which may take an hour or two to process. His ability to rest in this time is compromised in my finding. He must be available to do as much work as the situation demands, irrespective of where he is. This is supported by the fact that the respondent paid him on this basis, for the block of time rather than as a compartmentalisation of tasks. The respondent argues that he was the only APAM who charged his time like this, but it was conceded that he was not necessarily wrong to do so. In this regard, I find his approach is, in practical terms, uncontested.

[51]The respondent relies on Ville de Nivelles V Matzak

[2018] ICR 869

at paragraph 60 to support the argument that rest can occur between each call and that the totality of the passive stand-by time can be rest: “60. Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as “working time”, within the meaning of Directive 2003/88: Landeshauptstadt Kiel v Jaeger, para 65and the case law cited.”

[52]I find that the above is certainly correct in respect of the need to be within an hour’s travel time of an AP. Undoubtedly it is a constraint on his personal time. He would have 15 minutes to respond to a call and 1 hour to attend a premises. In his career, he can only name one occasion that this has occurred. It is not within the examples I have been provided for this hearing. I find that the prospect of this occurring to be so rare, and the probability so low that it does not push the stand-by period into working time. Viewed in isolation paragraph 60 of Matzack may also be supportive of the stand-by period being a rest period, where the only constraint is to be 1 hour from the AP’s. However, this is not the only responsibility and not the only analysis in Matzack.

[53]At paragraph 66 Matzak finds as follows: “66 It follows from all the foregoing that the answer to the fourth question is that article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within eight minutes, very significantly restricting the opportunities for other activities, must be regarded as “working time”.

[54]This is a very different slant on the situation. In Matzak the worker was an on call fire fighter. He had to get to the station within 8 minutes of a call. The fact that the claimant in this situation had 15 minutes to respond, is not so very different. Once he received a call, he had to take it or return it within 15 minutes. To do so, he had to be free from incumbrances, he had to be somewhere private, and he had to be aware that this would then absorb his time for an unspecified amount of time and period, even the remote possibility he would have to attend the AP.

[55]Just because the claimant was likely to be at home does not change the fact that once he got the call he was at the disposal of the respondent and he would have to forego such private and family time as necessary to complete the task. Even whilst waiting for a call back. For example a trip to the cinema, where you miss 30 minutes of the film, because you are in the street awaiting a call back from an AP, is not the same as enjoying the film uninterrupted. Even stepping back in at the end, would still have compromised the utility from it. In short you cannot achieve the utility from private time by proximity to the prospect of leisure, or osmosis. If you know it is going to be interrupted again and again, it is not truly “rest time”. I accept the claimant’s evidence that the practical implication was that he largely remained at home in the evenings, and close to home at the weekends. Although not essential that was the practical effect. Intermittent Working Tasks

[56]The compartmentalisation of rest time as discussed in Crawford V Network Rail Infrastructure Ltd

[2019] EWCA Civ 269

, for a 20 minute rest break, would only be relevant to a determination of compensatory rest under Regulation 24. For the purpose of Regulation 10(1) the requirement is for an 11 hour continuous period of rest. There is no scope to consider that compartmentalisation at this point.

[57]I prefer the approach adopted in RJ V Stadt Offenbach am Main Case

[2021] ICR 1109

and DJ V Radiotelevizija Slovenija [2021] ICR. Although not binding on the UK, as post Brexit, decisions they are none the less informative and I take judicial notice of them. DJ in particular provides helpful guidance as follows: Held, that working time in article 2(1) of Directive 2003/88included periods of stand-by when, even though the worker was not required to remain at his workplace, the constraints imposed on him had an objective and very significant impact on his ability freely to manage the time during which his professional services were not required and to pursue his own personal and social interests; that only constraints imposed by national law, a collective agreement, or by the employer pursuant, inter alia, to the employment contract, employment regulations or the system of dividing stand-by time between workers, should be taken into consideration in determining whether a period of stand-by time was “working time;” that organisational difficulties that were not the result of such constraints but were the consequence of natural factors, such as the limited nature of opportunities to pursue leisure activities within the immediate vicinity of the workplace, or of the workers own free choice, should not be taken into account; that, however, a period of stand-by time during which the time limit for returning to work was limited to a few minutes, had, in principle, to be regarded, in its entirety, as “working time”, since the worker was, in practice, strongly dissuaded from planning any kind of recreational activity; that, similarly, if the worker was frequently called on to provide services during periods of stand-by time and those services were not of a short duration, the entirety of those periods would, in principle, constitute “working time;” and that periods of stand-by time that did not meet the conditions to be classified as “working time” within the meaning of article 2(1) had to be regarded, with the exception of time linked to the provision of work actually carried out during those periods, as “rest periods” within the meaning of article 2(2) (post, paras 36—40, 42, 48, 53, 60, 66, operative part).

[58]This is helpful guidance. It follows that having found that once engaged in a matter it continued to be working time until the matter was concluded, I must go on to consider what periods of stand-by might be considered as working time.

[59]In the week of the 23rd of March the claimant was routinely contacted throughout the early evening. I have no doubt this was a busy week. It may well have been exceptional. Having experienced the Tribunal’s approach previously, the claimant may have selected a favourable week to base his claim on. The fact that it is favourable, does not detract necessarily from the likelihood of what was required week to week.

[60]The week in question (for the evenings) has a range in times for when the first calls start to be received. These range in time from 17:50 to 20:35 depending on the day. From the sample week, the frequency of calls clearly rises after 20:00pm.

[61]I accept the claimant’s evidence that from 17:00pm the AP’s routinely divert calls to the APRM if it is a matter likely to go beyond 17:30pm. Whilst there is a lower frequency both in the week in dispute and the historical records, of calls between 17:00pm and 20.00pm, they do routinely occur.

[62]There is a volume of evidence showing a regular occurrence of disturbance through the early evening. There are a number of cases which extend beyond 24.00pm. The parties are agreed that the highest probability of a recall for a curfew breach occurs following 23.00pm, and may take up to two hours from start to finish.

[63]Taking all of those matters into account, I find that the routine and regular expectation of the stand-by time is for the claimant to be available to work continuously for unpredictable periods of time between 17.25pm and 01.00am in the evenings. The frequency and unpredictability of the tasks and the time they are likely to involve meant he needed to be available to work for the whole period. Taking all those matters into account, and balancing the matters discussed above, I find that this is “working time”, each day whilst on the stand-by shift. The claimant knew he would be regularly disturbed and curtailed his activities and remained at home accordingly. I accept that he made provision not to be the primary carer for any dependant during this time, and remained active and ready to work (without going to bed) during this time.

[64]The situation between 01.00am and 09.00am is much less clear. The claimant’s own evidence was that he did not bother trying to go to bed before midnight. I understand why that is the case. But his evidence is that he does go to bed. He does sleep. There are examples in the bundle where he was called in the middle of the night. The spreadsheet at 314 shows 8 disturbances after 01:00 am. There are two examples in the 2022 logs of calls after 03.00am and one example after 07.00am. One of the calls after 03.00am in the bundle was clearly a mistake.

[65]The claimant said in his evidence he gets many managerial calls for the AP’s, such as shift difficulties, that are undocumented. They are on my finding unevidenced. He cannot discharge his burden in this regard. I find that the probability of a call after 01.00 is sufficiently low so as not to regard this as “working time”. This is supported by the findings in DJ: “…..and that periods of stand-by time that did not meet the conditions to be classified as “working time” within the meaning of article 2(1) had to be regarded, with the exception of time linked to the provision of work actually carried out during those periods, as “rest periods” within the meaning of article 2(2)”

[66]There are two examples in the bundle in 2024 where the claimant messaged to say he was coming in late as he had been disturbed all night. Beyond this, I can see limited evidence that it was a frequent occurrence. The time between 01.00am and 09.00am in my finding must therefore be considered “rest time” during the stand-by shift. There is no example in the sample week to support his claim.

[67]I turn then to consider the situation on a Saturday and Sunday (and bank holidays) where normal working hours are not engaged.

[68]I have evidence of calls taking place in the daytime at the weekend. On Saturday the 1st of April these spanned the majority of what would be considered a normal working day. In they started at 09.35am and continued through much of the until the evening. Given what I have found above on this occasion alone the claimant did not receive his 11 hours of continuous rest.

[69]However, on the Sunday he received no calls until the evening period. On the week in question the claimant does not discharge the burden of proof to show that there was likelihood of calls during the weekend day (09.00am to 17.24pm). On my finding this does not extend beyond an example. It sits in the same category as the calls after 01.00am, in that it is resting time that may become working time, but the probability and frequency is not established to a sufficient degree that I can find it constrained the activities of the claimant to such a degree that it became working time. The 1st of April 2023 was the ‘exception rather than the rule,’ on my finding.

[70]It follows that I find that the time between: 01:00am on a Saturday morning until 17:25 in the evening, and 01:00am on a Sunday morning to 09:00 on a Monday morning to be rest time, albeit the claimant did engage in periods of working time during his rest on the 1st of April 2023.

[71]The claimant failed to receive his 11 hour rest breaks between the 27th of May 2023 and the 2nd of April 2023, in accordance with Regulation 10(1) WTR 1998. Issue 2 : Do any of the exceptions apply to Regulation 10 WTR 1998?

[72]The respondent argues that the exceptions in Regulation 21(c) and (e)(ii) apply to this matter. I can deal with this matter relatively swiftly. Regulation 21(c) provides an example of Prisons and residential institutions by way of continuity of service provision. The AP are not prisons, but they have a public protection element. They house high risk individuals with specific licence conditions. The service has to operate, without the service those individuals may be in breach of a licence or liable to recall to prison. The risk profile of the residents is such that active and ongoing risk management to the staff and the residents is required.

[73]At 189 of the bundle the ‘National Probation Service Out of Hours Protocol for London,’ is produced. This clarifies the out of hours role for the claimant’s role: “The NPS is required to provide an ‘Out of Hours’ duty service to deal with offender recalls and other unspecified situations that may arise outside of normal office operating hours. The details and expectations relating to this provision are detailed below. … 1. Out of hours documentation should be provided to all Tier 2 (T2M) and Tier 1 Managers(T1M) covering out of hours activity, outlining protocols for dealing with, but not exclusively:• Recalls

• Data loss/Information Security Incidents

• Severe damage or threat to the AP

• Resident deaths

• Severe injury to staff

• Staff unable to work shifts

• To cover for staff unable to attend with 2 x OCS security guards (NPS to sleep on premises and only be woken in an emergency

[74]I am not at all clear as to the necessity (for a curfew breach) of processing a recall out of hours. I have not been pointed to any evidence in regard to the need for this continuity. Where an offence his been committed such as an assault, the individual is liable to arrest and detention in any event. I cannot see I have had persuasive evidence as to the need for this out of hours continuity. The requirement to operate out of hours as set out above is unspecified. Matt Wilson in his review of the service at 205 (in 2021) appears to support the view that out of hours rota for recalls may not be necessary all of the time: “i. Where possible, potential recalls should be agreed in advance with the relevant PDU Head during standard working hours, allowing the recall to simply be processed within the AP if required and without recourse to the on-call manager.”

[75]However, at 191 of the bundle onwards, the remaining criteria are explained. The APAM acting as TM1 is the effective line manager of the AP, out of hours. Given the nature of the AP and managing high risk offenders, and the public safety role involved, the remaining criteria set out above, clearly and unequivocally meet the need for a continuity of service provision. Whilst Mr Ilangarantne argues that there needs to be objective evidence for this continuity, in my finding this is contained at page 190 onwards in the out of hours protocol.

[76]I therefore find that the exception in Regulation 21 applies. Issue 3: Is the respondent in breach of Regulation 10 WTR 1998?

[77]The short answer to this is no. Regulation 21, provides an exception to Regulation 10(1) and therefore there is on my finding, no breach of regulation 10(1). Issue 4: If an exception applies, has the respondent provided compensatory rest periods in accordance with Regulation 24 of the WTR 1998.

[78]Having found an exception applies, I must apply Regulation 24 to my analysis and consider whether a period of compensatory rest was applied.

[79]In the week of 27th of May 2023, the claimant was engaged in working time on my finding until 01.00am each night. He therefore had a continuous 8 hour rest break each day. On the Saturday it was 8.5 hours. However, there was no flexibility on the Saturday or Sunday. He had to work from whatever time he received a call. His rest on the Saturday morning was interrupted after 8.5 hours.

[80]The evidence I have been presented suggested that the claimant could come in late. There are two examples in 2024 of him doing so. The claimant clearly on his evidence knew that he could do so and conceded that he did on occasions.

[81]The consensus appears to be that an 11am start would not be unreasonable, however after this time cover would usually need to be arranged. A later start time was certainly not off the table. However, these later start times are the exception.

[82]The examples in 2024 relate to incidents of disturbance through the night. My analysis of the situation was that it was open to the claimant to take the rest on occasions and that was acknowledged. However, the claimant’s interpretation of working time was very much at odds with the culture and analysis expressed by Ms Orlebar. I find that there existed permission for the exceptional evening, not the pattern of work that was being undertaken.

[83]There was an expectation of Ms Orlebar that the claimant was most likely to be engaged at 11pm at night. This was already too late for his 11 hours of continuity. I find that the culture and expectation was that if the claimant was disturbed into the early hours of the morning by a call, then he would take back some rest time. His duties and responsibilities continued in the daytime.

[84]My assessment of the claimant was that in those circumstances he would not have sought cover from colleagues, as he took his own responsibilities seriously and would not have wished to overburden others.

[85]Regulation 24 empowers a period of rest by way of compensation to be afforded. Because I have found that the Working time period extends from the end of the claimant’s day shift until 01.00am there is no earlier period to count as compensatory.

[86]I have not been presented with any evidence to suggest that the claimant took compensatory rest in the week of 27th of March 2023 or the week thereafter. The claimant had an 8 hour rest break Monday to Thursday, 8.5 hours on Friday and 8 hours between the 2nd and 3rd of April 2023. He was short of 17.5 hours of rest as a cumulative total for the week. There is no evidence that he received this in compensatory rest. He would have had to have started at 12pm Tuesday – Friday and then the following Monday. There is no evidence that this happened.

[87]It is by common agreement that there is no formal policy to deal with this situation and the compensatory rest approval was left largely to the discretion of the individual employee and their line manager. Much has been made in the hearing of a hypothetical future manager that may be less understanding. I cannot deal in hypotheticals, only the facts of the case.

[88]Regulation 24 (a) provides a caveat to enable an employee, wherever possible, to take an equivalent period of compensatory rest.

[89]I find there is a willingness on behalf of the respondent to accommodate compensatory rest, but that this was inadequate. It placed the responsibility on the claimant. His methodology as to how rest time was to be calculated was at odds with the organisation and his peers. I find therefore this constrained the degree and frequency at which he exercised the ability to come in late. It also meant that he simply took insufficient time, too infrequently to amount to compensation.

[90]The claimant had raised this matter in correspondence in 2021 and he had previously issued Tribunal proceedings regarding it. His concerns were well known. It should have prompted a review of how the compensatory rest provisions were calculated and applied. On the 21st of May 2021 Matt Wilson carried out a review of the NPS out of hours rota. He made a number of recommendations in his review. It does not appear that any of these (as they relate to the stand-by conditions have been actioned). Ms Orelebar confirmed she was not aware that there had been any action. The recommendations were: i. The stand-by payment rate should be reviewed and benchmarked against comparator organisations. ii. Stand-by rates for weekend and evening working should be reviewed as current arrangement of 12-hour blocks leaves some periods (eg. early hours of Monday morning) unpaid. iii. Evening and weekend patterns should be split in order to avoid staff covering whole weeks or weekends. Pattern to be redefined as Tuesday 5pm – Saturday 9am and Saturday 9am – Tuesday 9am (NE model currently). iv. Pay arrangements for ACO and SPO rotas (ie. whether both can claim Stand-by plus hours worked) should be clarified, standardised nationally, and communicated within the OoH Training Manual (see Point 14.iii). v. A mechanism should be established via which to effectively track Out of Hours costs, including specific on-call payments.

[91]The final recommendation would have enabled a monitoring of the hours worked by staff. That has not occurred. It would perhaps have prevented the need for these proceedings. However his other recommendations appear to dismiss the need for a specific policy: “15. Operational Principles …. v. Staff absence in OCCs due to provision of on-call cover the previous night is a challenge, however instances are relatively rare and are being managed appropriately at a local level. As such, a formal mechanism, beyond removing the need for Band 5 SPOs to provide staffing cover to APs, is not deemed necessary at this time.”

[92]I have not been presented with evidence as to whether there were any circumstances where it was not possible for the claimant to take his leave the following day. However, the rarity expressed by Matt Wilson in his review, makes it implicit that those engaged with tasks after 22.00pm at night, were not absent the following day as a matter of routine. The only evidence I have of the claimant’s absence is anecdotal and in 2024.

[93]Regulation 24(b) provides flexibility to compensate and safeguard rest periods in order to safeguard the employees health and safety. The claimant did not raise a grievance or complaint prior to these proceedings. He had previously issued a claim where he argued his health and wellbeing had been affected. His complaint was well know.

[94]His late start was the exception and not the rule. However, a late start would have been needed to compensate for the lost rest as a general rule. That was not the case. Had he taken a late start every day, this would have no doubt placed him in a very difficult situation with management, notwithstanding their flexibility for some late starts. Whilst I disagree with the suggestion that there is a positive duty for an employer to ensure the employee takes all his compensatory rest, there must at least be a mechanism to ensure he is able to do so, and free from criticism. Other than the occasional exceptional day (readily agreed by Ms Orlebar) he simply did not have the mechanism to do so, because his mechanism for calculating working time was disputed. Every day with a call after 22.00pm would have needed a late start, or separate compensation and there is simply not the evidence to support this as an option. There is no evidence before me of any time in lieu being offered on a separate day.

[95]I find therefore that the respondent has breached both regulation 24(a) and (b) for the week of the 27th of March 2023 to the 3rd of April 2023. The respondent did not allow sufficient compensatory rest on the days in question and did not afford him alternative protection.

[96]The claim therefore succeeds.

[97]I will list a separate remedy hearing as this decision deals with liability only. I encourage the parties to continue their positive and collaborative relationship and discuss the remedy, to avoid the necessity for further hearings (if at all possible). That is my Judgment. Approved by:

[1]The application for reconsideration of my reserved Judgment and reasons dated 25.07.2025 succeeds in part.

[2]The Judgment is amended to read as follows:a. The claimant was engaged in “working time” during his stand-by period between 17.25pm and 01.00am between the 27th of March 2023 and the 3rd of April 2023.

b. The claimant was denied appropriate compensatory rest periods by the Regulations 1998 during the above period between 27th to 31st of March and the 2nd to the 3rd of April 2023.

[3]My findings of fact at paragraphs 71 and 86, of my reasons dated 25th July 2025 are varied as set out in the reasons below.

[1]This decision should be read in conjunction with my Judgment and reasons dated 25th of July 2025.

[2]Having promulgated that liability decision the respondent applied (in time) for reconsideration of limited aspects of my factual determination related to the calculation of rest breaks between the 1st and the 2nd of April 2023. Namely paragraph 86 of the decision.

[3]Initially the hearing listed on the 13th of November was intended to dispose of the remedy issues. However, the agreed positions of the parties was that it should be converted to a reconsideration hearing, with a subsequent remedy hearing to be fixed.

[4]At the conclusion of today’s hearing I reserved my decision, to avoid confusion, so that a written decision could be read alongside my previous written decision. I am advised that an appeal has been lodged with EAT. The Application

[5]My decision of the 25th of July 2025 found in favour of the claimant, to a limited extent, that during the week in question, he had not had adequate rest breaks, or a period of adequate compensatory rest.

[6]Within the application the respondent made the following arguments related to the weekend period only: Night of the 31st of March to the 1st of April “Based on the Tribunal’s findings, the Claimant finished his working time at 1am on Saturday 1 April. The Tribunal made no explicit finding as to when he started work again later on Saturday. However, it held at para 86 that the Claimant had 8.5 hours rest that night. That suggests the Tribunal found that the Claimant started work again at 09:30 on the morning of 1 April. However, this finding does not appear to have considered the submission made about C’s work on Saturday at para 57(b) of the Respondent’s closing submissions: in short, all that happened at 9.30 on the Saturday was that C received an email (which did not require any action). He did not do any actual work until 1pm: see p.223 of the bundle. Accordingly, it is submitted that the Claimant did get 11 hours of rest on the night of 31 March – 1 April. Alternatively, even if he did not, he had an 8.5-hour break which was followed almost immediately (even if 15 mins is allowed to read the email received at 9:35am) by a further 3 hours and 10 mins of rest time. Although (possibly) not consecutive, that should be considered as compensatory rest. As a result, it is submitted that the Claimant did get either 11 hours of rest, or alternatively adequate compensatory rest, on the night of 31 March – 1 April. Night of 2 - 3 April The Tribunal found that the time from 17:25 on Sunday 2 April until 1am on Monday 3 April was working time. The Claimant did not do any work outside that time window: see pp.226-227 of the bundle. Taking that finding at face value, that means that the Claimant had two rest periods, both of at least 8 hours: from 9:00 – 17:25 during the day of 2 April, and then again from 1am to 9am on the morning of 3 April. Given that Crawford suggests that “compensatory rest” need not involve consecutive hours of rest, it is submitted that the requirement for compensatory rest on 2 – 3 April was met. This is essentially the point made at paragraph 69(a) of the Respondent’s closing submissions. The Tribunal is respectfully invited to address this issue, which appears to have been overlooked. This may be because the finding at paragraph 85 applies for Monday to Friday but does not apply to the weekends given the finding about weekend daytimes at paragraph 70. The same submission could be made in relation to 1-2 April, but it is not necessary because the Respondent understands the Tribunal to have found that the Claimant did get 11 hours of rest that night given that he did not work before 17:25 on Sunday 2 April. If that understanding is incorrect, then the same submission is made in relation to the night of 1 – 2 April given the daytime rest periods on 1 April (albeit interrupted) and the rest period from 1am – 9am on 2 April.

[7]As a consequence, I am asked to reconsider or amend my factual findings accordingly. The Law

[8]Part 12 of the Employment Tribunal Rules of Procedure 2024 sets out the process and procedure for reconsideration. Where the issue under an application for reconsideration is a matter of fact, that is a matter for my discretion based upon the representations made.

[9]I am not being asked to revoke my decision and the application is limited to a variation, or perhaps a clarification, pursuant to Rule 68 (2).

[10]Rule 70 sets out the process to be adopted in considering a reconsideration: Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.

[11]I make it plain that I have made no determination yet under rule 70(2), and this matter was listed for a hearing, for expediency as a preliminary issue at a remedy hearing. I have adjourned the remedy hearing, at the mutual request of the parties. This application therefore proceeded to a substantive hearing, in part at the claimant’s request. In the circumstances, I shall simply go on to evaluate the arguments and analyse them accordingly under rule 70(4). Submissions and

Evidence

[12]I have been provided with a bundle of 132 pages for this reconsideration hearing, which contains the salient documents.

[13]The respondent’s submissions are limited to their application, which is a self contained application. Mr Williams expanded on the points eloquently. He set out in detail why he argued that the time taken at 9.35am on the Saturday morning, should not be considered to break the rest time, and in the alternative that the Tribunal had failed to consider the compensatory rest that could be achieved that day. Similarly for the Sunday the respondent argued there was a failure to consider the compensatory rest period for the Sunday.

[14]We discussed at length the risk of double counting rest periods and the potential to operate flexibility in the 24 hour period under consideration. Mr Williams was at pains to stress that while my original decision was comprehensive during the week period, and this had been the focus of the litigation, that there was then either a gap or a mathematical error in the way the rest over the weekend had been calculated. He conceded in discussion that the specifics of when the claimant had looked at the emails on the Saturday had not been the subject of challenge in cross examination. However, he argued that even if it were earlier there was sufficient time to compensate the rest period, within that day. Likewise for the Sunday, he argues that the rest time on the Sunday compensates for the working time.

[15]Mr Illangaratne kept his argument succinct. He resisted the application for reconsideration and argued that my original determination was sufficiently clear so as not to require an amendment. He also argued that a hearing had not been required to determine this application, but noted that this had been requested by those who instructed him. He took his time to respond to the criticisms raised by the respondent and offered a rebuttal to each in turn. He argued that this was an attempt to re-litigate matters which were either well covered at the hearing, or not raised at the time. Analysis and

Conclusion

[16]My reserved Judgment is set out in two paragraphs, followed by the reasons. That Judgment stated: “1. The claimant was engaged in “working time” during his stand-by period between 17.25pm and 01.00am between the 27th of March 2023 and the 3rd of April 2023. 2. The claimant was denied appropriate compensatory rest periods by the Regulations 1998 during the above period.”

[17]The reconsideration application does not seek to amend that determination. It seeks to amend my reasoning behind it and the calculation of compensatory rest periods over the weekend. Whilst I understand that the substantive Judgment is subject to an appeal, I have not been asked to reconsider the above Judgment.

[18]It was discussed in the hearing and all parties and I agreed that the interpretation of my Judgment should be that the working time extended from 17.25pm until 01.00 am for the 7 day period. Therefore this same period on a Saturday and Sunday evening should also be considered working time. This aspect is not disputed, but I restate this for the avoidance of doubt.

[19]At the outset of the hearing I discussed with the parties that although I had listed a hearing to determine the application, this was partly at the claimant’s request, and partly to give the matters a fair and proper hearing. It did not constitute a determination regarding the prospect of the success of the application. In the circumstances, this matters little as I shall go on to consider the application in detail.

[20]I have been referred to Crawford V Network Rail Infrastructure Ltd, as part of this hearing, and at the final hearing. In essence, the respondent argues that this decision allows for compensatory rest to be taken, in effect piecemeal, to make up for any deficit. This is relevant to any determination regarding the Saturday.

[21]I observed in the hearing, as I do now, that there may well be exceptions where a piecemeal application of rest is insufficient to consider it compensatory. The decision in Crawford deals with small periods of rest during a working shift, and how that can be compensated. That is to be distinguished from the intent of the regulations, which envisage a longer period (11 hours), which is clearly designed to encompass substantial self care tasks, such as eating and sleeping, in order to preserve individual wellbeing and health and safety.

[22]When one then comes to assess and adjudicate on a period of compensatory rest, there is therefore an inherent risk in the methodology espoused by the respondent. Namely, where an individual exceeds the requisite 11 hours one day, that the excess can be used to offset any diminution the following day, added together in a piecemeal fashion, you may then achieve compliance. It is an attractive argument viewed mathematically, but it ignores in its entirety, the sole and centre of the regulations, which is to deal with human fatigue. The meaning of compensatory, must be considered as an equivalent period of putting an individual back in the position they would have been, but for the loss of continuous rest.

[23]This therefore comes to how the 24 hour period is calculated. Whether this is a rolling 24 hour calculation, or a static calendar based calculation, for the same 24 hour period each day.

[24]There does not appear to be a dispute that I approached my calculation, between Monday morning and Friday morning, looking at the period of 9am on day one to 8.59am on day two, and so on. However, my findings did not amount to include the weekend days (prior to 17.25pm) to be working time. Therefore, for the weekend, an assessment of the working time against the rest time available, is needed. In short it has to be a dynamic calculation for the weekend, where we lack the structure of the working week. This is clear from my previous findings where I calculated the rest on a Saturday morning until 09.30am instead of 09.00am (for a weekday). Saturday 1st April 2023

[25]The claimant finished working time at 01.00am on Saturday morning. On my finding he does not re-commence work until 17.25pm on the Saturday evening. The gap between is rest time. However, his rest time is punctuated by various periods of working time (for which he has been paid). I found that he recommenced work at 09.35am on the Saturday morning. The respondent has contended that there is no evidence for what time this occurred or that it was necessary. I reject that analysis. The claimant was a credible witness. His account of his note was not challenged. His evidence was clear that, when he was on call he would have to keep checking his phone. I maintain my finding therefore that he recommenced work at 09.35am interrupting his rest break. This was an out of hours email from the police. I accept that it was reasonable to view this and no one has said that it was not.

[26]I accept the respondents submissions that I then did not go on to consider the impact of this within my decision, representing a gap in my analysis. I shall therefore consider whether to vary my decision.

[27]The task undertaken at 09.30am was minimal. In combination with another task occupying approximately 15 minutes of time. The next task does not take place until 13.00pm (lasting 30 Minutes) and then from 15.00pm he is engaged un working time until 01.00am.

[28]I accept the submission that I should have gone on to consider whether, within the remaining rest period (as per Crawford), this minimal interruption could be compensated within the remaining hours before the claimant is said to return to working time. I accept that I did not go on to do so, and therefore my reasoning and calculation should be varied accordingly. I accept the respondent’s submission that there was then a period of sufficient compensatory rest on the Saturday, even allowing for the minimal tasks undertaken. I therefore amend my reasoning at paragraph 86 accordingly. I vary the finding accordingly. The operation of the shift pattern in accordance with regulation 11(2)WTR 1998, would mean the respondent would not be in breach. Although the rest period was broken, the task involved was so minimal as to be capable of compensation within the remaining periods (before 13.00pm and or between 13.30pm and 15.00pm)

[29]However, for the purposes of a remedy, I note that the working time between 17.25pm on Friday and 01.00am on the Saturday, may need to be the subject of further argument at the remedy hearing. Sunday 2nd of April to Monday 3rd of April 2023

[30]The situation between the 2nd and 3rd of April is somewhat different. Mr Williams argues, that the claimant got his rest on Sunday as he was not disturbed during the day. I do not consider my finding at paragraph 86 is at odds with that.

[31]After the claimant finishes his working time at 01.00am on the Sunday, there was no further interruption. On my previous findings, he should then return from rest to working time 17.25pm on the Sunday evening, until 01.00am Monday morning, before returning to the office at 09.00am on Monday morning.

[32]Mr Williams in relying on the concept that the excess time over and above the 11 hours rest on the Sunday, may offset the working time that evening. I disagree with that contention for a number of reasons which I shall set out below.

[33]Firstly, whilst it is true that from 09.00am on Sunday to 0.900am on Monday there are only 07.25 working hours. This leaves the remainder of that 24 hour period as rest. Some of that rest is attributable to the preceding night. Mr William’s argued that everything from 12.00pm on Sunday could therefore count as compensatory rest, for the working time that evening.

[34]All of the evidence in the substantive hearing pointed to compensatory rest following the event. i.e. if a worker had a late night they could come in later the following day. In short the totality of the respondent’s evidence was that the rest followed the event. There is an inherent logic to this. The compromised period of time was during a period of time where a worker might reasonably be expected to have had several hours sleep.

[35]To suggest that rest prior to a sleep period in the day can be compensatory, ignores the very basics of a Circadian rhythm. Assuming I look at the 24 hour period from 17.25pm on the Sunday, the claimant returned to work at 09.00am the following morning and by the time he leaves work at 17.25 the 24 hour period has elapsed with no compensatory period. It is not argued that I should take any period after 17.25pm into account. I specifically addressed with Mr Williams the impact of taking this 24 hour period as a calculation. He simply argued that the Monday was not part of the claim.

[36]I disagree with that contention. My Judgment related to the Monday and encompassed the time he returned to work. A respondent cannot simply ignore this period because it suits their argument. The argument that I may use an earlier period on the Sunday, as compensatory, specifically anticipates that there is insufficient rest time in the 24 hours from 17.25pm on the Sunday to Monday at 17.25pm. The respondent has therefore engaged in an argument over this period, without specifically acknowledging it.

[37]The fact that on this particular Sunday evening, he was not called upon for any significant work is immaterial. Just as some days during his rest periods he has to work. These things are variable. But my findings are that this evening period is working time. What represents a statistical outlier (on the date in question), is immaterial to the fact that it should be considered working time.

[38]In order for rest to be considered truly compensatory, it has to be realistic to the extent and duration of work. A rest period prior to a period of work might be compensatory for a short duration rest break, as described in Crawford. However, compensation is designed to put you in the equivalent position you would have been in. So to take an earlier period of rest, ignores the reality of the human condition and that fatigue is cumulative. Nature cannot be overcome, by a mathematical formulation of segmented rest, which is disconnected from reality. The equivalence of an earlier rest period diminishes rapidly throughout the 24 hour period. This is particularly the case where it occurs prior to a period of sleep, or significantly distant from a period usually designated for sleep.

[39]If the average person on the street was asked; whether rest occurring the day (over 24 hours) prior to the end of a working period (containing inadequate rest breaks), could be compensatory for a loss of rest, the likely response to that question would be, ‘no’. I can reach no other conclusion than this, for all of the reasons detailed above.

[40]I find that the excess period before 17.25pm on Sunday, is of no value when it comes to calculate the equivalent rest period. Nothing within the argument advanced regarding this has altered or advanced information that was before me at the final hearing. So far as my reasoning was unclear as to the weight I placed upon the earlier period, I have clarified this above.

[41]Therefore, I maintain my finding that from 17.25pm on the Sunday evening until 17.25pm on the Monday the claimant did not receive his mandated 11 hours rest in this 24 hour period. I do not consider that the early rest period (over and above the 11 continuous hours) on the Sunday, is equivalent to count towards the rest period. Conclusion

[42]It follows therefore from what I have said above, that the application for reconsideration succeeds in part. I must amend my finding at paragraph 71 and 86 of my original determination as follows (words in bold amounting to the substituted finding): 71. The claimant failed to receive his 11 hour rest breaks between the 27th of May March 2023 to 31st of March and the 2nd to 3rd of April 2023, in accordance with Regulation 10(1) WTR 1998. 86. I have not been presented with any evidence to suggest that the claimant took compensatory rest in the week of 27th of March 2023 or the week thereafter. The claimant had an 8 hour rest break Monday to Thursday Friday morning, 8.5 hours on Friday and 8 hours between the Sunday 2nd and Monday 3rd of April 2023. He was short of 17.5 15 hours of rest as a cumulative total for the week. There is no evidence that he received this in compensatory rest. He would have had to have started at 12pm Tuesday – Friday and then the following Monday. There is no evidence that this happened.

[43]I note in passing that there were some erroneous references to May 2023 in my analysis. These should be read as ‘March’ 2023.

[44]In the circumstances, it is also appropriate for me to amend paragraph 2 of my Judgment for clarity, the amendments appear in bold: 2. The claimant was denied appropriate compensatory rest periods by the Regulations 1998 during the above period between 27th to 31st of March and the 2nd to the 3rd of April 2023. That is my Judgment. Approved By