MR J P GALLAGHER & OTHERS v ALPHA CATERING SERVICES LTD T/A ALPHA FLIGHT SERVICES [2004] UKEAT 0048_04_1703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0048_04_1703Case No Appeal No. UKEAT/0048/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J P GALLAGHER & OTHERSAPPELLANTALPHA CATERING SERVICES LTD T/A ALPHA FLIGHT SERVICESRESPONDENT
Before
His Honour Judge J McMullenDate 17 March 2004
[1]APPEARANCES For the Appellant MR ANDREW HOGARTH QC Instructed by: Messrs O H Parsons & Partners 3rd Floor Sovereign House 212-214 Shaftesbury Avenue London WC2H 8PR For the Respondent MR PETER OLDHAM (Of Counsel) Instructed by: Messrs Berwin Leighton Paisner Adelaide House London Bridge London EC4R 2HA SUMMARY Employment Tribunal wrongly focussed on the need for continuity of Respondent's activities, rather than the worker's, and so excluded workers from protection; WTR 21(c), Leave - CA (2) No error in construing "surge of activity" in WTR 21(d) as the facts. HIS HONOUR JUDGE McMULLEN QC This case is about the application of the right to rest-breaks under the Working Time Regulations 1998 to workers engaged in catering to the Civil Aviation Industry. The judgment represents the views of all three members. We will refer to the parties as the Applicants and the Respondent. Introduction[2]It is an appeal by the 28 Applicants in those proceedings under the name of Mr Gallagher against the reserved decision on a preliminary point of an Employment Tribunal sitting at London South, Chairman Mr A M Snelson registered with Extended Reasons on 7 October 2003. The Applicants and Respondent were represented there and here by respectively Mr Andrew Hogarth QC and Mr Peter Oldham of Counsel. The Applicants alleged breach of the Working Time Regulations. The Respondent denied that the Employment Tribunal had jurisdiction and asserted other reasons on the merits for denying their claims. The Issues and Our Conclusions[3]The essential issues were mapped out by the Employment Tribunal at a Directions hearing setting up the instant hearing: whether the Applicants were covered by the Working Time Regulations in respect of their rest-break entitlement. The issues on appeal can be better understood after an account of the legislation. On the principal ground of appeal, which we will call the continuity of service point, the Employment Tribunal rejected the Applicants' claims but we uphold them. If we are wrong, we would nevertheless uphold the Applicants' contentions that the Employment Tribunal has yet to deal with a claim for compensatory time. Secondly, on what we will call the "surge of activity" point and the "downtime" point we agree with the Employment Tribunal and dismiss the Respondent's cross-appeal. The Decision[4]The Tribunal decided that the Applicants were not protected by the Regulations, at the same time dismissing other grounds of the Respondent's defence. On appeal, the Applicants contend that the decision was wrong and the Respondent cross-appeals on the two of the four points on which the Employment Tribunal found against it. It also raises an issue as to the disposal of the Employment Tribunal proceedings. Directions sending this appeal to a full hearing were given in Chambers by His Honour Judge Peter Clark. The Legislation[5]Times move on. The caricature of the British workers' tea break now finds expression Europe=wide in serious regulations deriving from health and safety legislation. So far as they are relevant they are as follows. The Regulations deal essentially with five periods of a worker's life. They are the length of night work, working time, weekly rest periods and entitlement to annual leave. In addition and most contentious in our case is recognition of a right to take a rest break after a maximum of six hours.[6]Regulation 12(1) is as follows:
"(1) Where an adult worker's daily working time is more than six hours, he is entitled to a rest break."
[7]There are exceptions in Part III of the Regulations dealing with excluded sectors, for Regulation 18 provides as follows:
"18 Excluded sectors Regulations 4(1) and (2), 6(1), (2) and (7), 7(1), and (6), 8, 10(1), 11(1) and (2), 12(1), 13 and 16 do not apply – (a) to the following sectors of activity – (i) air, rail, road, sea, inland waterway and lake transport; (ii) sea fishing; (iii) other work at sea; or (b) to the activities of doctors in training, or (c) where characteristics peculiar to certain specific services such as the armed forces or the police, or to certain specific activities in the civil protection services, inevitably conflict with the provisions of these Regulations."
[8]It will be noted that that provision deals with sectors of activity. Included within the same Part III are: Regulation 19 dealing with domestic service, Regulation 20 dealing with the workers who have unmeasured working time and where examples are given of managing executives, persons with autonomous decision making powers, family workers and those officiating at religious ceremonies, Regulation 22 for shift workers and Regulations 26, 27 and 27(a) dealing with young workers.[9]With the exception of Regulation 18 those regulations appear to deal with what we will call worker specific rights and exclusions. In the centre of these exceptions is Regulation 21 headed 'Other Special Cases' which provides in relevant part as follows:
"21 Other special cases Subject to regulation24, regulations 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply in relation to a worker – … (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, residential institutions and prisons; (ii) work at docks or airports; (iii) press, radio, television, cinematographic production, postal and telecommunications services and civil protection services; (iv) gas, water and electricity production, transmission and distribution, household refuse collection and incineration; (v) industries in which work cannot be interrupted on technical grounds; (vi) research and development activities; (vii) agriculture; (d) where there is a foreseeable surge of activity, as may be the case in relation to – (i) agriculture; (ii) tourism; and (iii) postal services; (e) where the worker's activities are affected by – (i) an occurrence due to unusual and unforeseeable circumstances, beyond the control of the worker's employer; (ii) exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer; or (iii) an accident or the imminent risk of an accident."
[10]We will be concerned with Regulation 21(c)(ii) and 21(d). It is agreed that within Regulation 21(c) we are to deal with the phrase 'continuity of service' for production does not arise in our case. Regulation 21(e) deals with unusual and unforeseeable circumstances which is not relevant to our considerations.[11]A person who is excluded from the scope of the time off provisions by reason of Regulation 21 has the right to compensatory rest. In circumstances where rest may not be taken the employer must see to it that an equivalent period of compensatory rest is made available - see Regulation 24.[12]Enforcement of these regulations is by way of a complaint to an Employment Tribunal that an employer has refused the worker's right to exercise any of the rights under the Regulations. It is to be noted that, so far as is relevant to our case, Regulation 12(1) is separated from Regulation 24. The remedies which are available are declarations and compensation.[13]These Regulations derive from the Working Time Directive - EEC93/104 EC. The recitals, which are important, indicate that this Directive derives from Directive 89/391 EEC known as the Framework Directive which is designed to introduce measures to encourage improvements in the safety and health of workers at work. The Working Time Directive was introduced under Article 118(a) as it then was of the Treaty of Rome. Firmly in the minds of anyone dealing with these Regulations must be the ultimate source of the Regulation which is a measure to protect the health and safety of individual workers.[14]That is provided for in the preamble as follows. Whereas given the specific nature of the work concerned it may be necessary to adopt certain measures with regard to the organisation of working time in certain sectors or activities which are excluded from the scope of this Directive.[15]The Directive itself sets out periods for daily rest breaks, weekly rest periods and annual leave. It lays down minimum standards. Member States are free to improve on them. There was at the relevant time a blanket exclusion of transport from both the Directive and the Regulations. That has been repealed. . Derogations similar to Regulation 21 in the Working Time Regulations are set out in Article 17 but it will be noted that there is a number of different formulations:
"2. Derogations may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection – 2.1 from Articles 3, 4, 5, 8 and 16 – (a) in the case of activities where the worker's place of work and his place of residence are distant from one another, including offshore work, or where the worker's different places of work are distant from one another; (b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or secutity firms; (c) in the case of activities involving the need for continuity of service or production, particularly - (i) services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons; (ii) dock or airport workers; (iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services; (iv) gas, water and electricity production, transmission and distribution household refuse collection and incineration plants; (v) industries in which work cannot be interrupted on technical grounds,; (vi) research and development activities; (vii) agriculture; (viii) workers concerned with the carriage of passengers on regular urban transport services; (d) where there is a foreseeable surge of activity, particularly in – (i) agriculture; (ii) tourism; (iii) postal services; (e) in the case of persons working in railway transport - (i) whose activities are intermittent; (ii) who spend their working time on board trains; or (iii) whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic]"
[16]The differences appear in the use of the words "in the case of activities involving the need for continuity of service", and we are going to be concerned in this case with the exclusions relating to airport workers and to surges of activity.[17]For the purposes of the Working Time Regulations working time is broadly speaking that time when a worker is not on break or other period away from work. There is no definition of rest break. Employment Tribunal Directions[18]The Tribunal directed itself by reference to the relevant provisions we have cited above and what we hold to be the leading authorities which are SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] IRLR 845 ECJ and South Holland District Council -v- Stamp and Others EAT/1097/02, His Honour Judge Birtles and members, 3 June 2003 (unreported). We were also referred to Bowden -v- Tufnell Parcels Express Ltd [2001] IRLR 838 , ECJ. The Facts[19]Activities of the Respondent were found to be as follows:
"2. The Respondents are a substantial company which describes itself as an airline catering business. A substantial part of their work consists of the delivery and loading to aircraft of airline meals, drinks and sundry items and unloading ("de-catering") aircraft which have arrived. The Respondents service, among others, airlines which use Gatwick Airport. For the purpose of the Gatwick operation, they have premises located nearby where food is prepared and packed and drinks and other items stored. In addition to those who work in the premises they employ some mobile staff who have duties connected with the transportation of the food and other items to and from the airport. These mobile staff includes drivers (designated "
FEH1s"), loaders ("FEH2s"), and service team representatives ("STR's"). 6(1) We have mentioned that the Respondents are a large organisation. They service a number of airports. The Gatwick operation employs approximately 400 staff. (2) The business (at Gatwick at least) is divided into four Departments : Food Supply, Production, Equipment Supply and Service Delivery. It seems that the Service Delivery Department employs somewhere between 150 and 170 individuals. The Applicants formed part of the Service Delivery Department. (4) FEH1s and FEH2s work together on shifts as teams of two. Their working days start and finish at the Respondents' premises. Their main function is to load their heavy goods vehicle, drive it to the airport, deliver food and equipment to the aircraft and/or "de-cater" them and return whatever has been removed to the Respondents' premises. The round-trip (including stops to collect drinks from the nearby bonded warehouse) is typically 6 to 7 miles in total. It seems that, generally speaking, a team will complete two round trips per shift. (5) Very often there are intervals when FEH1s and FEH2s are at the airport but have no duties to undertake immediately. Such time is usually referred to as "downtime". During downtime the driver/loader team must maintain radio contact with the Respondents. A hand-held radio is provided and one member of the team must have it in his possession at all times. The FEH1s and FEH2s do not have access to airport facilities. Unlike the STR's, they are not provided with passes enabling them to enter the airport buildings. There is a toilet which they can use and a designated "smoking shed". Many take refreshments with them and consume them during downtime. During downtime drivers and loaders will ordinarily remain in their vehicles or very close by. They are not permitted to sleep during downtime and it is understood that they are at their employer's disposal. (7) The Respondents' work is time-critical. The "window" for loading and (where necessary) unloading aircraft is typically 35 minutes in the case of a short-haul flights and 70 minutes where international flights are concerned. The time pressure is increased by the fact that other service providers (such as cleaners) must also have access to the aircraft during the turnaround period. The Respondents are liable to financial penalties where an aircraft is delayed owing to their failure to complete their duties within the prescribed time. Those penalties are payable under the terms of their contracts with the airlines they serve. (8) Not surprisingly, there are fluctuations in the amount of work which the Respondents must carry out. Most weekdays are busy in the mornings and quieter in the afternoons. In the weekly cycle Fridays and Sundays are busier than other days. Self-evidently, during holiday times traffic volumes increase. Ms Nicholl told us, and we accept, that during a morning shift on a Monday there may be 25 flights leaving Gatwick for which the Respondents are responsible, and that during the corresponding shift on a Saturday the number may be no more than 10. We accept her evidence that in a busy week the Respondents may service 1,100 aircraft, whereas in a quiet week the figure may be as low as 800."[20]The Employment Tribunal made findings in respect of the three issues which are relevant to the appeal. It decided that workers were not excluded from protection by virtue of Regulation 18 since they were not engaged in either the air or the road transport sector of activity. Although the subject of a cross appeal, a challenge to this decision was abandoned.[21]The first issue was as follows. Are the Applicants deprived of the protection of Regulation 12 by operation of Regulation 21(c) on the ground that their activities involved the need for continuity of service? The Tribunal decided that they were so excluded, because there were time pressures which affected the catering services. There were consequences in terms of financial penalties upon the Respondent and also in terms of the disruption of a fundamental public service. These were found to be telling factors. It was also noted that if excluded by Regulation 21, the workers would still have the right under Regulation 24 to compensatory rest. The Tribunal noted that any derogation from the right of workers to a rest break must be construed strictly. The purpose of the Regulations was to ensure that as a matter of health and safety. The protection should be available to all workers unless specifically excluded.[22]The second issue was as follows. Are the Applicants excluded from the protection of Regulation 12(1) by the operation of Regulation 21(d) where there is a foreseeable surge in activity? On this the Tribunal found in favour of the workers. The Tribunal accepted the submission of Mr Hogarth QC that "surge" was intended to refer to something more extreme than natural fluctuation in activity which most workers in most industries experience. The Tribunal said as follows:
"We agree with him that the concept of a "surge" is intended to refer to something much more extreme than the natural fluctuations in activity which most workers in most industries experience. The examples under paragraph (d) (again, taken from the Directive) point, we think, to exceptional levels of activity arising seasonally or on special days or during particularperiods in the year, and not to routine increases and decreases in activity occurring naturally in the daily and weekly cycle. 15. In any event, we are satisfied that the relatively modest fluctuations which the Respondents experience within the working day and the working week (as to which we have made our findings above) are not capable of amounting to "surges" within the meaning of reg 21(d). 16. It seems to us that it would be a matter for evidence whether the exclusionary effect of paragraph (d) was brought into operation as a consequence of foreseeable increases in activity during particularly busy periods of the year. It would be for the Respondents to prove on cogent evidence a seasonal phenomenon involving a quantum leap in the level of their activities. The increases in activity from a "quiet" week of 800 flights to a "busy" week of 1,100 flights would not, in our view, satisfy that requirement."
[23]On that basis it held on the facts that the workers were not excluded by Regulation 21(d).[24]The third issue was as follows. Does downtime of not less than 20 minutes uninterrupted qualify for the purposes of Regulation 12(3) as a rest break? It held that the argument that is did was misguided. The Tribunal decided it was not assisted by the definition of working time to which we have referred nor by the examples given in two of the authorities cited above. However it did hold as follows:
"Although the point is, in our view, immaterial, we record for what is worth our opinion that downtime qualifies within the three-part definition of working time in sub-paragraph (a) of reg 2 of the 1998 Regulations, read conjunctively. It is a part of the job of every Applicant to wait at the airport between loading and/or "de-catering" assignments, maintaining radio contact and being ready to react at once to the next instruction. During downtime, they are working, they are at their employer's disposal, and they are carrying out one of their duties."
[25]The Tribunal made these findings:
"The matter now before the Tribunal is, if anything, an a fortiori case because the Applicants are not merely "on call": downtime is a necessary stage in the process of allocating tasks to loading teams and STR's as the need arises. During downtime the Respondents' employees, unlike the doctor in the Norbert Jaeger case, are not waiting for work in case it materialises: they are part-way through their working day, awaiting the next instruction which will inevitably come within a short time. The waiting is an integral part of their function, not an interruption of it."
[26]The cases were dismissed. Correspondence has been received from the Chairman indicating that that was all that appeared to be relevant in the proceedings. The Applicants' case[27]The continuity of service point. The Applicants submitted that the Tribunal had erred in law in that its interpretation of Regulation 21(3) was incorrect. Derogation had to be strictly construed. Indeed the full derogation had not been taken by the United Kingdom. Derogation applies to a wide range of rights and the exclusions are not limited to the examples set out in Regulation 21. These are cases regarded as special and therefore not normal. The examples of a need for continuity relate to the activities not of the employer but of the worker . Examples given were of a surgeon who could not leave the theatre but whose employer (hospital) may not be engaged in continuous activities, and of an immigration officer at an airport whose employer is engaged in 24 hour activities. The need for continuity of his services is plain if he is in the middle of an interview of an immigrant but there is no requirement for continuity by him of surveillance activities. The regulation focuses upon the worker's activities and not the employer's. There is different language in the Regulations and the Directive.[28]No challenge was made to the factual determination by the Tribunal of the activities of the employer. It is not said for example that the judgment as to the time pressures and financial circumstances was perverse. In other words, if the Tribunal applied the correct test there would be no dispute. The flood gates would open to drown workers' rights so that employers would benefit from their own decision to provide scant cover so that there would always be a demand for continuity of service. This could not be the purpose of the Regulations.[29]It was submitted that if we were against Mr Hogarth nevertheless the case would live on for there was no decision made by agreement to set aside all of the Originating. Applications by way of dismissal, and the matter should go back to the Tribunal for it to decide whether or not the compensatory rest claim had been made and made out.[30]Responding to the arguments of Mr Oldham in relation to the "surge of activity" point, it was contended there was no definition but it obviously had in mind a substantial or severe change. It is a strong word. It applies in special circumstances where there are predictable seasonal fluctuations, in agriculture - lambing, in tourism - bank holiday at Thorpe Park, in postal services - at Christmas. It is contended that the Tribunal's handling of the numbers of planes to be serviced could not be described as perverse. In respect of downtime, Mr Hogarth exuded a little sympathy with the Respondent's argument but indicated that the Tribunal gave the correct legal direction and decision applying the relevant authorities. The Respondent's case[31]On behalf of the Respondent, it is contended the correct construction focuses upon the activity of the employer and not upon the worker's and the Directive itself says nothing of the worker's activities. It is disputed that derogation has been narrower than is necessary and there is no difference between the sector or activities. Reliance was place upon the preamble which we have referred to. The exceptions in Regulation 21(c) are in industrial terms. As to the "surge" point it is contended that the pattern of working within the Respondent indicated that there were fluctuations squarely within Regulation 21(d). The Tribunal direction was incorrect in respect of paragraph 14 which we have read. In any event the decision of the Tribunal that the differences were relatively modest during the working year could not be sustained.[32]On the downtime point all three elements directed by the SIMAP case must be present. This appeared to be common ground. The Legal Principles[33]The legal principles to be applied appear to us to be as follow.[34]The three elements in the definition of working time are to be construed conjunctively. See SIMAP above.[35]It is relevant to look at the relationship between the definition of working time and other times since there is no definition of rest break.[36]Derogations from a Directive and thus the exclusion of workers from protection under a health and safety measure should be construed strictly.[37]An Employment Tribunal must give adequate reasons for its decision. See Meek v City of Birminghan District Council [1987] IRLR 250 CA.[38]If an Employment Tribunal makes an error of law its decision will be set aside unless it is unarguably right. See Dobie v Burns International Secruity Services (UK) Ltd [1984] ICR 329 CA.[39]A question of fact is not appealable within our jurisdiction. See Employment Tribunals Act 1996 section 21. Conclusions The continuity point[40]We will take the continuity point first. In our judgment Mr Hogarth's submission is correct. We start with the opinion of the Advocate General in Bowden (above). Admittedly that case was dealing with the blanket exclusion of transport industries under the Directive as it was in force at the time. The Directive has now been amended and with it our own Working Time Regulations so this point is now obsolete but what the Advocate General said at paragraph 40 is instructive:
"Since therefore the underlying the exclusion of the latter from the scope of the Directive lies in the special nature of the activities typical of the sector (the need for continuity of service or production, mobility, etc), it is necessary, in order to reduce the scope of the restriction complained of, to focus on the specific nature of the activities undertaken by the worker rather than on the activity of the employer. Thus, the exclusion does not affect whole sectors but only the activities for which it is specifically justified."
[41]It will be seen therefore that at least in his opinion it was the activities of the worker which were relevant to the construction of Article 17 which is equivalent of our Regulation 21. When the matter went to the European Court of

Justice its judgment provided as follows:

"39 It is clear that that, by referring to 'air, rail, road, sea, inland waterways and lake transport', the Community legislature indicated that it was taking account of those sectors of activity as a whole, whereas in the case of 'other work at sea' and the 'activities of doctors in training' it chose to refer precisely to those specific activities as such. Thus, the exclusion of the road transport sector in particular extends to all workers in that sector. 40 Contrary to the appellant's contention, there is nothing in Article 17(2.1)(c)(ii) of the Directive to detract from that interpretation. As the Advocate General observes in point 38 of his Opinion, that provision, whose purpose is not to widen the scope of the Directive as defined by Article 1(3), is specifically concerned with workers who, although employed in ports or airports, do not fall within the sea or air transport sectors in the strict sense, such as catering workers, shop assistants, porters or dockers."
[42]This draws a distinction between those who are engaged for the purposes of the blanket exclusion in transport sectors in the strict sense and those who are auxiliary to it such as catering workers. Construing our own Regulations it seems to us that the connection from continuity of service is to the worker's activities. Nothing is said about the employers' activities. The worker's activities require continuity rather than the activities of the employer within this particular sector.[43]That is consistent with the other sub-paragraphs where the worker's activities are provided for by 21(a). The worker is focussed on in 21(b) and the illustrations provided in 21(c) although indicating sectors or industries also point to the activities of workers. It also seems to us to fit comfortably within the scheme of the exceptions from Part III for as we have noted above, apart from Regulation 18 and possibly Regulation 25 on the Armed Forces, the other Regulations focus on what a worker does rather than what his or her employer does.[44]As a matter of construction we would hold that Article 21(c) excludes a worker's right to rest breaks where his or her activities involve the need for continuity of service rather than where his or her employer's activities involve that need. We accept Mr Hogarth's admonition that to do otherwise would involve a possible abuse of these Regulations by an employer who understaffed in order to maintain a need for continuity of service and thus to deprive its workers of their health and safety protection. We consider that is a good explanation for accepting the construction which he advances. The "surge" point[45]Sadly there is no definition in the Regulations or the Directive of "surge" nor any authority we have been shown. The OED provides definition relating mainly to the sea, rivers, emotions and crowds. The question concerns the construction of an ordinary English word. We accept again Mr Hogarth's submission that it involves something forceful and unusual. However, to be excluded by 21(d) there needs to be a foreseeable surge. It is arguable that tourism includes the industry in which we are engaged but no particular submission has been made to us and it must be borne in mind that the three examples of agriculture, tourism and postal services are examples only.[46]For the purpose of deciding this point, as for the next (downtime) point, we have had assistance from Miss Bilgan who as we said at the outset has substantial experience in the civil aviation industry. The examples from the arguments of Counsel are of some assistance but essentially we accept the self direction of the Employment Tribunal which we have cited from paragraph 14 as being correct. That is the Employment Tribunal doing the best it can with no definition and no authority has come up with a workable and we hold correct approach to this Regulation. It is apt to exclude workers from the protection of this health and safety measure only in cases where there is an exceptional level of activity arising seasonally or during particular periods which can be foreseen.[47]The Tribunal then applied that Direction to the facts. This is pre-emently a matter in which the Tribunal was required to exercise its judgment and experience of industry. It held that the Respondent had not put forward cogent evidence of seasonal changes in their work. Much emphasis was placed before us upon the difference between the demand for the Respondent's services on a Monday (and we take it through the week) and on a Saturday varying from 25 to 10 flights. That however gives a false impression because that is in total a small percentage of the 800 or 1100 aircraft serviced by the Respondent during the week according to where it falls in the calendar. The Tribunal was entitled therefore to find that these were relatively modest fluctuations which the Respondent experiences over the working day and over the working week. They could not be described as surges. That is a matter for the Employment Tribunal to assess and we see no error in its approach as a matter of fact. The downtime point[48]We come to the conclusion that the Tribunal was again assessing a question of fact. The question which it was asked related to the work being done and not done throughout the working day. In our judgment the Tribunal has assessed the circumstances. We accept Mr Oldham's submission that the Tribunal was wrong to disregard the definition of working time but that does not enable him to succeed for the Tribunal as we have cited above did address the correct question. It accepted the three part definition of working time. It found as a matter of fact what the workers were doing in their working time and in what was alleged to be downtime and whether that was consistent with a rest break. In deploying its industrial experience it came to a factual determination about what the workers were required to do and whether those requirements fitted into the three part definition of working time.. It will be noted, the Tribunal went on, to say as follows:
"The Advocate General concluded that all of the doctor's time at the clinic (even when sleeping) counted as working time. The matter now before the Tribunal is, if anything, an a fortiori case because the Applicants are not merely "on call": downtime is a necessary stage in the process of allocating tasks to loading teams and STR's as the need arises. During downtime the Respondents' employees, unlike the doctor in the Norbert Jaeger case, are not waiting for work in case it materialises: they are part-way through their working day, awaiting the next instruction which will inevitably come within a short time. The waiting is an integral part of their function, not an interruption of it. 22. In summary, our conclusions on this part of the case are as follows. First, downtime is working time and the argument based on a process of elimination falls at the first hurdle. Secondly, even if downtime was not within the definition of working time, the corollary that periods of downtime constituted rest breaks is a non sequitur. The legislation does not say or imply that any period which is not working time or a rest period is a rest break. Thirdly, for the reasons stated in paragraph 20 above, periods of downtime (regardless of their duration) do not amount to rest breaks within the meaning of reg 12(3)."
[49]On this matter the judgment of this industrial jury should not be disturbed. For those reasons the preliminary point decided against the Applicants will be reversed and we dismiss the cross-appeals.[50]We heard full arguments on the Regulation 24 point. It is not necessary for us to decide it in the light of our decision but out of deference to those arguments we make it clear that we would, in favour of the Respondent, have nevertheless accepted that there was no final disposal at this Preliminary Hearing of all of the cases. The Originating Application, it is true, cites only a claim under Regulation 12 and not Regulation 24 but such a claim was contemplated by the Respondent for in its Notice of Appearance at paragraph 4.6 the Respondent says this:
"The Respondent therefore denies that the Applicant has been denied a break as alleged to retort to the extent that the Applicant has been unable to take a break. The Respondent provided compensatory rest."
[51]This is a clear reference to the claim made which is identified by reference to specific dates in paragraph 8 of the Originating Applications. It would be a matter for the Tribunal to decide how to dispose of these cases and whether there were any remedy left but, on the footing that we are wrong in our substantive decision, there was no final dismissal of all of the cases at the Preliminary Hearing.[52]We would very much like to thank both Mr Hogarth and Mr Oldham for their very careful and interesting submissions orally and in writing and in the development of the examples which have assisted us in reaching our decision. The appeals are allowed, the cross appeals dismissed and the substantive hearing will now take place at the Employment Tribunal. We give permission to appeal.