THE CORPS OF COMMISSIONAIRES MANAGEMENT LTD v MR D HUGHES [2008] UKEAT 0196_08_2210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0196_08_2210Case No Appeal No. UKEAT/0196/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE CORPS OF COMMISSIONAIRES MANAGEMENT LTDAPPELLANTMR D HUGHESRESPONDENT
Before
Mr JUSTICE SILBER MR M CLANCY DR B V FITZGERALDDate 22 October 2008
[1]APPEARANCES For the Appellant MR CASPAR GLYN (of Counsel) Instructed by: Messrs Simons, Muirhead & Burton Solicitors 8/9 Frith Sterner Soho London W1 D3JB For the Respondent MR DAVID GRAY-JONES Solicitor Messrs Thomas Mansfield LLP Solicitors Unit 2 Ground Floor Christopher Wren Yard 119 High Street Croydon Surrey CRO 1QG SUMMARY WORKING TIME REGULATIONS The claimant, who worked as a security officer, made a claim for compensatory rest under the Working Time Regulations.[2]Under regulation 12 of those regulations, it is provided that "where a worker's daily working time is more than six hours he is entitled to a rest break". Such a break is for 20 minutes where, as in the present case, there is no collective agreement or workforce agreement in force.[3]Security guards fall outside these provisions but regulation 24 provides that: "Where the application of any provision of these Regulations is excluded by regulation 21 or 22… and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break - a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker's health and safety".[4]The issues are:a. A. if under the 1998 regulations, a worker was entitled to a rest break for each period of six hours which he works or whether he is only entitled to one period of rest for however long he works in excess of 6 hours (Issue A) ;b. B. In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (Issue B) ; andc. C. Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? ( Issue C)[5]As to issue A, a worker is entitled to one period of rest for how ever long he works in excess of 6 hours.[6]As to issue B, the Employment Tribunal has to adopt a two-stage approach in which it has first to be decided if the claimant's case was such that it was not " possible for objective reasons [to] grant such [an equivalent period of compensatory]rest". If the answer was in the affirmative in the sense that it was possible, the claimant would be entitled to an equivalent period of compensatory rest but if the answer was in the negative in the sense that it was not possible, then pursuant to regulation 24(b), the respondent will have to " afford the claimant such protection as may be appropriate in order to safeguard the [claimant]".[7]As to issue C, a claim can only be made in respect of a prescribed period of 3 months from the time when the claimant should have been given a compensatory rest period unless the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply in which case the prescribed period is extended to six months. THE HONOURABLE MR JUSTICE SILBER I. Introduction and the Regulations "a) The claimant's entitlement whenever possible to an equivalent period of compensatory rest under regulation 24 of the Working Time Regulations 1998 ("the regulations") is not met during rest periods available to the claimant but must be allowed by the respondent whenever possible during a period which would otherwise be the claimant's working time"; b) The matter was "to be re-listed so as to consider whether the respondent had afforded the claimant whenever possible an equivalent period of compensatory rest, and if not, whether the respondent is liable to the claimant for any compensation"; and c) The claim for compensation was to be limited to a period of 3 months before the claim form was presented to the Employment Tribunal on 6 June 2007." "(1) Where a worker's daily working time is more than six hours he is entitled to a rest break (2) The details of the rest break to which a worker is entitled under paragraph (1) including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement." "…the rest break provided for in paragraph(1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one." "… a period of downtime cannot retrospectively become a rest break only because it can be seen after it is over that it was an uninterrupted period of at least 20 minutes. The worker is entitled …to a rest break if his working time exceeds six hours, and he must know at the start of the break that it is such. To my mind a rest break is an uninterrupted period of at least 20 minutes which the worker can use as he pleases." "Subject to Regulation 24, regulations … 12(1) do not apply in relation to a worker … (b) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers or security firms." dealt with in regulation 24 which (insofar as is relevant) provides that:
"Where the application of any provision of these Regulations is excluded by regulation 21 or 22… and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break – (a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and (b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker's health and safety"
. II. The Agreed Factual Matrix and the Issues. a) Regulation 21(b) ("the security activities exemption") of the regulations applied to the claimant's work; b) The claimant was not entitled to rights under regulation 10 (daily rest), regulation.11 (weekly rest) and regulation12 (rest breaks); c) The claimant was entitled under regulation 24 to compensatory rest; d) The claimant was always required by the respondent to work during the period which would otherwise have been his rest breaks; and e) The claimant was not paid for any compensatory rest. A) if under the 1998 regulations, a worker was entitled to just one compensatory rest or rest break for each period of six hours which he works or whether he is only entitled to one period of rest for how ever long he works in excess of 6 hours (Issue A) (See paragraphs 12 to 16); B) In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (Issue B) (See paragraphs 17 to 33); C) If the claimant is entitled to a compensatory rest, is he entitled to be paid? (Issue C) (See paragraphs 34 to 38); and D) Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? ( Issue D) (See paragraphs 39 to 42). III. Issue A Under the 1998 regulations, is a worker entitled to just one compensatory rest or rest break for each period of six hours which he works or whether he is only entitled to one period of rest for how ever long he works in excess of 6 hours? "10. In circumstances where the claimant had been compensated with periods of rest equivalent to the 40 minutes per day which Mr Glyn conceded the claimant was entitled to , the respondent had not breached the regulations. The claimant had been compensated for what he had lost and the regulations did not provide for any loss of compensatory rest to be compensated for in terms of money." "for the purposes of consideration of C's claim it is not conceded that C is entitled to 40 minutes every 12 hours but let us, for the sake of argument, set out that he is." A) Regulation 12 (1) provides that that if the worker's " daily working time is more than six hours, he is entitled to a rest break ". The use of the indefinite article show that the entitlement is for just one rest break; B) The entitlement is only triggered by exceeding six hours work and there is no further triggering event set out in the regulations; and C) If, as the claimant says is the correct position, a worker was entitled to just one compensatory rest or rest break for each period of six hours which he works, this would require rewriting the regulation to add additional words and no cogent reason has been put forward to justify this approach. IV. Issue B. In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (i) Introduction (ii) The Directive "all workers should have adequate rest periods, community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks" (paragraph (5) , and that "the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations" (paragraph 4). "shall be allowed subject to the condition that [A] the equivalent compensatory rest periods are granted to the workers concerned or [B], in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection." "113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC see to that effect, inter alia, the judgments cited above in Von Colson and Kamann, paragraph 26; Marleasing, paragraph 8, and Faccini Dori, paragraph 26; see also Case C-63/97 BMW [1999] ECR I-905 , paragraph 22; Joined cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores".

(b) as he is (with underlining added):

"engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards… ." (iv) The Interpretation of Regulation 24 (v) Conclusion A) if whenever the claimant works for more than 6 hours, it was not possible for objective reasons for the respondent to grant the claimant an equivalent period of uninterrupted 20 minutes compensatory leave which he can use as he pleases and which falls outside his shifts; and then B) (in the event that it was not possible for objective reasons to grant such a period of rest) how the respondent can afford the claimant such protection as may be adequate to safeguard him. V. Issue C. If the claimant is entitled to compensatory rest, is he entitled to be paid for it? "
We accept the submission of Mr Gray-Jones on behalf of the claimant, that a compensatory rest period has to be a rest period given in lieu to an employee of what would otherwise be working time and that in such circumstances the worker would be paid for such period because otherwise it would not amount to a period in lieu of what would otherwise be working time". VI. Issue D Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? "(2) An employment Tribunal shall not consider a complaint under this regulation unless it is presented:- (a) before the end of the period of three months (or, in a case to which regulation 38(2) applies, six months) beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made; (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three or, as the case may be, six months." "he must do so before the end of the period of three months beginning with the date on which it is alleged that the exercise of the right should have been permitted to begin or the payment should have been made, subject to he power of the tribunal to extend time for such further period as it considers reasonable where it is satisfied that it was not reasonably practicable for the complainant to have been satisfied within the three month period." (per Maurice Kay LJ in Inland Revenue Commissioners v Ainsworth [2005] ICR 1149 at 1158 with whom Kennedy and Laws LJ agreed.) VII. Conclusion. (a) whenever the claimant works for more than 6 hours if it was not possible for the respondent to grant the claimant an equivalent period of uninterrupted 20 minutes compensatory leave which he can use as he pleases and which falls outside his shifts; (b) if it was not possible for objective reasons to grant such a period of rest) how the respondent can afford the claimant such protection as my be adequate to safeguard him; (c) whether the claimant should receive pay from the respondent for his compensatory leave; and (d) whether the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply so that the period when a claim can be made by this claimant for a compensatory rest period is extended from a three- month period prior to the presentation of the claim to the Employment Tribunal to a six-moth period prior to the presentation of the claim to the Employment Tribunal.