FIRST HAMPSHIRE & DORSET LTD v 1) MR J FEIST [2006] UKEAT 0510_06_2012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0510_06_2012Case No Appeal No. UKEAT/0510/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
FIRST HAMPSHIRE & DORSET LTDAPPELLANT1) MR J FEISTRESPONDENT
Before
His Honour Judge Peter Clark Mr C D Edwards Mr D G LewisDate 20 December 2006
[1]APPEARANCES For the Appellant MR BRUCE CARR (of Counsel) Instructed by: Messrs Burges Salmon Solicitors Narrow Quay House Narrow Quay Bristol BS1 4AH For the Respondent MR JONATHAN GRAY (Solicitor) Messrs Lamport Bassitt Solicitors 46 The Avenue Southampton SO17 1AX SUMMARY Working Time Regulations Whether Claimant bus drivers, excluded from right to 11/24 hours rest under Working Time Regulations reg 10(1), were entitled to both adequate rest (reg 24A) and compensatory rest (reg 24). HELD: Adequate rest only. HIS HONOUR JUDGE PETER CLARK This appeal raises a short and, we believe, novel point on the proper construction of the Working Time Regulations 1998 ( WTR ), as amended. The parties before the Southampton Employment Tribunal, against whose Judgment, promulgated with reasons on 16 August 2006, this appeal is brought, were Mr Feist and others, Claimants, and First Hampshire & Dorset Ltd, Respondent. It is the Respondent's appeal.[2]The Claimants were all employed as bus drivers by the Respondent in Hampshire and Dorset. A small number of the duties allocated to the Claimants involved daily rest periods of less than 11 hours in 24. The preliminary question determined by the Tribunal was whether, in those circumstances, the Claimants are entitled under WTR to adequate rest under regulation 24A only, as the Respondents contend, or, in addition, to compensatory rest under regulation 24, as the Claimants contend? The Tribunal agreed with the Claimants, that it is both. Is that a correct construction of those provisions? Working time[3]The starting point is the Working Time Directive 93/104EC . WTR was passed to implement the 1993 Directive . That Directive was amended by Directive 2000/34/EC . Those amendments were later consolidated in Directive 2003/88/EC . WTR was in turn amended, so far as is material, by statutory instrument 2003/1684 . Like the Tribunal we are satisfied, for present purposes, that WTR as amended fairly reflects the Working Time Directive current at the time of this case.[4]We are concerned with workers' daily rest. Regulation 10(1) WTR provides that a worker is entitled to a rest period of not less than 11 consecutive hours in each 24 hour period for which he works for his employer. However, regulation 21 provides, by sub-regulation (c)(viii) that, subject to regulation 24, regulation 10(1) does not apply in relation to a worker where the worker's activities involve the need for continuity of service or production, as may be the case in relation to the carriage of passengers on regular urban transport services. It is common ground that that exception covers the Claimant bus drivers.[5]Regulation 24, headed "compensatory rest", which has not been amended since 1998, provides, so far as is material, that:
"Where the application of any provision of these Regulations is excluded by regulation 21… 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."
[6]Regulation 24A was added to WTR by the 2003 amendment. It is headed "mobile workers". Sub-regulation (1) provides, again so far as is material, that regulation 10(1) does not apply to a mobile worker, in relation to whom the application of that regulation is not excluded by any provision of regulation 18. Regulation 18(4) provides that regulation 10(1) does not apply to workers to whom Directive 2002/15/EC relating to workers performing mobile road transport activities applies. It does not apply to these Claimants.[7]Regulation 24A continues:
"(2). A mobile worker, to whom paragraph 1 applies is entitled to adequate rest, except where the worker's activities are affected by any of the matters referred to in regulation 21(e) [not material]. (3). For the purposes of this regulation "adequate rest" means that a worker has regular rest periods, the duration of which are expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, he does not cause injury to himself, to fellow workers or to others, and that he does not damage his health, either in the short term or in the longer term."
It is common ground that the Claimant bus drivers are mobile workers as defined in WTR regulation 2(1). The present case[8]We have carefully read the Tribunal's reasons for their decision, particularly paragraphs 43 to 51. However, we are satisfied that the argument below did not focus, as it has before us, on the critical analysis of regulation 24 WTR . Consequently the Tribunal, in their reasoning, have not applied that focus.[9]The Claimant bus drivers are excluded from the provisions of regulation 10(1), among others common to both regulation 21 and regulation 24A, both by regulation 21 and regulation 24A. We read regulation 24 in the way advanced by Mr Carr. Where the application of regulation 10(1), entitlement to 11 hours rest in 24, is excluded by regulation 21 and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period, means, in our judgment, that solely by virtue of the regulation 21 exclusion the worker may be required to work more than 13 hours in a 24 hour period.[10]That is not the case with mobile workers, who are a subset of the group identified at regulation 21(c)(viii). They are additionally excluded from the provision contained in regulation 10(1) but are entitled to adequate rest as defined in regulation 24A(3). Thus they are not simply excluded from the protection of regulation 10(1) by regulation 21 ("accordingly"). More significantly, they would not otherwise be entitled to the rest period provided for in regulation 10(1) because instead they are entitled to adequate rest in lieu of the fixed rest period provided for in regulation 10(1), from which they are excluded by regulation 24A(1).[11]The contrary argument, ably advanced by Mr Gray, is that, since the Claimants fall within both regulation 21 and 24A, they are entitled both to compensatory rest under regulation 24 and adequate rest under regulation 24A. It cannot be right, he submits, that if adequate rest under regulation 24A is less than the fixed period provided for in regulation 10(1) they should not be entitled also to compensatory rest under regulation 24, and thus be in a potentially less favourable position than the larger group provided for in regulation 21(c)(viii), of which they are also a part. Their status as mobile workers provides a floor of rights. Compensatory rest places them in the same position as the remainder of the larger group.[12]Attractively as that submission is put, we cannot accept it as a pure matter of construction for the reasons advanced by Mr Carr. It is not the operation of regulation 21 which deprives them of the fixed rest period provided for in regulation 10(1). It is the substitution by regulation 24A of adequate rest as defined for that fixed rest period.[13]For these reasons, which differ from the approach taken by the Employment Tribunal, we shall allow this appeal and substitute for paragraph 1 of the Tribunal's Judgment on preliminary issue a declaration that the Claimants are entitled to adequate rest, pursuant to regulation 24A WTR, but not compensatory rest, pursuant to regulations 21 and 24.