MR D HUGHES v THE CORPS OF COMMISSIONAIRES MANAGEMENT LTD [2010] UKEAT 0173_10_2211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0173_10_2211Case No Appeal No. UKEAT/0173/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D HUGHESAPPELLANTTHE CORPS OF COMMISSIONAIRES MANAGEMENT LTDRESPONDENT
Before
Lady Smith Mrs C Baelz Ms B SwitzerDate 22 November 2010
[1]APPEARANCES For the Appellant MR DAVID GRAY-JONES (Solicitor-Advocate) Messrs Thomas Mansfield LLP Solicitors 35 Artillery Lane London E1 7LP For the Respondent MR CASPAR GLYN (of Counsel) Instructed by: Messrs Simons Muirhead & Burton Solicitors 8-9 Frith Street London W1D 3JB SUMMARY WORKING TIME REGULATIONS Working Time Regulations. Rest breaks. Security guard (special case under regulation 21(b)). Whether receiving "an equivalent period of compensatory rest" (regulation 24(a)). Whether not possible for objective reasons to grant such compensatory rest (regulation 24(b). Whether, if so, employer granting him appropriate protection. Employment Tribunal found no breach of WTR since employer met the requirements of regulation 24(b). Appeal dismissed. Employer was actually meeting the requirements of regulation 24(a) but even if the EAT was wrong about that, the Tribunal's judgment that regulation 24(b) was met, was unimpeachable. THE HONOURABLE LADY SMITH Introduction This case comes before this Tribunal for the second time (following remit) and is an employee's appeal from the judgment of an Employment Tribunal sitting at London South, chaired by Employment Judge Freer, registered on 4 January 2010 finding that the Claimant's claim for compensatory rest under the Working Time Regulations 1998 was not well founded.[2]We will carry on referring to parties as Claimant and Respondent. Background[3]The background facts, as found by the Tribunal, can be shortly stated. The Claimant is employed by the Respondent as a security guard/commissionaire. The Respondent has a contract with Orange to provide twenty four hour security guard cover at their premises in Croydon and the Claimant has worked there since 1996.[4]Security cover at the Orange site is on the basis of a single guard being provided. Three security guards are assigned to the site by the Respondent and each guard works twelve hour shifts. Accordingly, on any one day one guard works the day shift, one guard works the night shift and the other guard has a rest day.[5]A kitchen area was provided for the use of the security guards including the Claimant and they were allowed to take breaks there. They were allowed to leave a sign on the reception desk indicating that they were on a break but specifying a number where they could be contacted. It could not, accordingly, be guaranteed in advance that their break periods would be periods of uninterrupted rest. It was, however, possible for the Claimant to choose when to take his break and he could time it so as to coincide with when, in his experience, he was least likely to be uninterrupted. If he did get interrupted during a break, the Claimant was allowed to start his break from the beginning again.[6]The Claimant presented a claim to the Employment Tribunal in which he complained that he was not receiving the rest time to which he was entitled under and in terms of paragraph 12 of the Working Time Regulations 1998 ("WTR") . The claimant also relied on paragraph 24 of the WTR. Remit[7]Following the hearing of a previous appeal (see: UKEAT/0196/08), the claim was remitted to a fresh Employment Tribunal to consider four issues which were set out in paragraph 43 of the judgment of this Tribunal in the following terms:
"(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 (sic) 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."
[8]The articulation of these issues was evidently driven by the tenor of the arguments before the previous Employment Appeal Tribunal, in which the focus was on regulation 24(b) of the WTR. We are, however, a little puzzled by the wording of the first issue since it would seem to suggest that that Tribunal had determined that compensatory rest could not occur during the 12 hour shift, perhaps because the Tribunal took the view that, because the breaks available to the Claimant were not such as to afford 20 minutes of uninterrupted rest, which he knew in advance would be uninterrupted, to do with as he pleased, they could not qualify as "equivalent periods of compensatory rest". That was certainly the understanding of parties. Also, the view of the first Employment Appeal Tribunal was plainly that any compensatory rest could not be within the 12 hour gap between shifts; the Claimant already had a right to a 12 hour rest period between shifts and the employer could not nominate part of that period as meeting the compensatory rest requirement. Matters are not, however, entirely clear and we wonder whether the first issue was intended to read:
"Whenever the claimant works for more than 6 hours, whether it is possible for the respondent to grant him an equivalent period of uninterrupted 20 minutes compensatory rest which he can use as he pleases which falls within the 12 hour shift?"
Working Time Directive[9]Council Directive 93/104/EC, commonly known as the "Working Time Directive" ("WTD") lays down minimum health and safety requirements for the organisation of working time. For the purposes of the present case, the following recitals appear to be relevant:
"Whereas ……. (2) Article 137 of the Treaty provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers' health and safety. Directives adopted on the basis of that Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. …….. (5) All workers should have adequate rest periods. The concept of "rest" must be expressed in units of time, ie in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours. ……… (15) In view of the question likely to be raised by the organisation of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the health and safety of workers."
[10]As do the following Articles:
"Article 4 Breaks Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including the duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation. …….. Article 17 Derogations ………. 2. Derogations provided for in paragraphs 3, 4 and 5 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."
Working Time Regulations ("WTR") and the interpretation of paragraph 24[11]The relevant provisions of the WTR are as follows:
" 2 Interpretation (1) In these Regulations- ……… 'rest period' in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations; ……….. 'working time', in relation to a worker, means – (a) any period during which he is working, at his employer's disposal and carrying out his activity or duties, (b) any period during which he is receiving relevant training, and (c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement; and 'work' shall be construed accordingly;" …………….. 12) Rest Breaks (1) Where a worker's daily working time is more than six hours, he is entitled to a rest break. ….. (3) Subject to the provisions of any applicable collective agreement or 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… 21) Other special cases Subject to regulation 24, regulations 6(1), (2) and (7), 10(1), 11(1) and (2) and 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 of security firms….. 24) Compensatory rest Where the application of any provision of these Regulations is excluded by regulation 21 or 22, or 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."
[12]Accordingly, a "rest break" is different from a "rest period". In the present case, the 12 hour period between two 12 hour shifts is a rest period. A "rest break" is a break at some point during the shift. In a case which is not a special case (e.g. one falling within paragraph 21(b) of WTR) and the worker's daily working time is more than six hours, as discussed by the Court of Appeal in Gallagher v Alpha Catering Services Ltd [2005] ICR 673), that break requires to be free of the characteristics of working time. It requires to be a period which he knows in advance will be uninterrupted and is uninterrupted, and which he can use as he pleases ... a ""Gallagher" rest break").[13]In a special case, such as the present one, the worker is not entitled to a "Gallagher" rest break. The employer is, however, obliged "wherever possible" to allow the worker to take "an equivalent period of compensatory rest". It is plain that that is not the same as a "Gallagher" rest break. Certainly, the objective is to provide the worker with some break from his duties but the language of equivalence and compensation shows that it is something which is not identical to a "Gallagher" break. It connotes something which makes up for the fact that the worker does not receive such a break by providing a break that is as near in character, quality and value to a "Gallagher" rest break as possible. The precise elements of that equivalent period of compensatory rest will obviously vary according to the facts and circumstances of the individual case. In some cases, it may be possible for the employer to provide a break that very nearly meets the "Gallagher" criteria – circumstances where the worker is technically "on call" during a 20 minute break but is, in practice, never called on, for example. In others, it may be that less freedom is able to be afforded to the worker during his break but he does get one or it may be that no break at all can possibly be given during the first shift of each cycle but that is compensated for by the worker being given a double break of 40 minutes in the second shift he works in the cycle. There are, no doubt, many other possible scenarios. It seems to us that that approach to the interpretation of paragraph 24(a) properly reflects the aims and objects of the WTD in accordance with the obligation to interpret domestic law in conformity with the relevant directive (see e.g.: Adeneler and others v Ellikikos Organismos Galaktos [2006] IRLR 716 ).[14]The interpretation of paragraph 24(a) was the subject of a cross appeal on behalf of the employer. We were satisfied that it was appropriate, in the circumstances, to entertain it even although, on one view, it was a new argument not put before the Employment Tribunal. It was not suggested that the Claimant was prejudiced by it and we can see that it would have been otiose for the Respondent to seek to argue it before the Tribunal, given the restricted nature of the remit. It is, however, an important matter which has a particular bearing on the present case and it would have been wrong for us to refuse to hear it.[15]In arriving at the above conclusion as to the interpretation of paragraph 24(a) of WTR we had regard to the submissions that were made on behalf of both parties. Mr Gray-Jones urged us to have regard to the authorities such as Gallagher , Landeshauptstadt Kiel v Jaeger [2004] ICR 1528 , and Vorel v Nemicnice Cesky Krumlov Case C-437 [2007] ECR 1 331 but they are not directly in point and we did not find them to be of assistance. They help to identify what paragraph 24(a) does not require an employer to provide but they do not identify what is required of him. Mr Glyn, on the other hand, stressed that paragraph 24(a) does not require a "Gallagher" rest break nor is it a "rest period" as defined in paragraph 2. The recitals of the WTR showed, he said, that it was appropriate to have regard to the needs of an SME such as the Respondent for flexibility in their working practices and he stressed that this was a directive which allowed for derogation; it was recognised that there may be more than one way of meeting the WTD's stated objective. We found his submissions to be of assistance.[16]Turning to paragraph 24(b), much of the debate before us centred on its interpretation although, as we will explain, we have reached the view that this is a case which actually falls within paragraph 24(a). The previous Employment Appeal Tribunal and the Employment Tribunal having approached matters on the basis that this was a paragraph 24(b) case, we should, however, for completeness, deal with the submissions regarding it.[17]Mr Gray-Jones submitted that the use of the expression "exceptional cases" in paragraph 24(a) referred to something that was rare and out of the ordinary. So far as the expression "objective reasons" was concerned, whilst taking issue with the Tribunal's approach, to which we refer below, he did not, ultimately offer any submission that the expression should be given any particular meaning. Mr Glyn's submissions focussed, rather, on the terms "not possible for objective reasons". It seems to us to be correct to do so. Paragraph 24, which directly reflects the nature and extent of the permitted derogation, appears to be an attempt to provide a complete code where rest breaks in special cases are concerned. The expectation is that an employer will be able to find some way of providing rest of the sort described in paragraph 24(a) and discussed by us above. It will not do for the employer to say, for instance, that it is inconvenient to provide rests during a shift which lasts longer than 6 hours, or that he does not think it is possible for him to do so. In such cases, paragraph 24(a) applies. If anything can be provided that can properly be seen as falling within the paragraph 24(a) description of rest then the employer must allow the worker to have it. If, however, on the basis of an objective assessment of the facts, the nature of which will inevitably vary from case to case, it can properly be concluded that it is not possible to provide an equivalent period of compensatory rest during the shift then paragraph 24(b) comes into play. The use of the word "exceptional" does, we agree, indicate that these cases are going to be out of the ordinary. It will be unusual for the circumstances of a worker's employment to be that it is not possible to provide him with paragraph 24(a) rest, particularly since there is scope for affording that provision in various different ways. We consider, accordingly, that what paragraph 24(b) has principally in mind are those circumstances where no paragraph 24(a) rest can possibly be provided during the shift. Then, bearing in mind the health and safety objectives which underlie WTD, the employer has to afford the worker any other "protection" which is "appropriate" so as to safeguard his health and welfare. That phrase is so wide as to encompass not only rest which for some reason does not meet the requirements of paragraph 24(a) (e.g. because the maximum break possible is 10 minutes) to the provision of something which is not a rest at all but could involve any number of other measures ranging from the way in which the work is organised during the shift to health checks for workers. Mr Gray-Jones submitted that absent the carrying out of a risk assessment under paragraph 3 of the Management of Health and Safety at Work Regulations 1999 , an employer cannot demonstrate that he has satisfied the requirements of paragraph 24(b). Whilst we can see that an employer might choose to include an assessment of the risk to workers' health and safety of working without paragraph 24(a) rests and that that is one means by which he might be able to identify what he can do to take other steps to protect health and safety in the light of any such risk, we do not accept that submission. It cannot follow that there is a breach of paragraph 24 of WTR simply because an employer has not carried out a risk assessment under the 1999 Regulations. Judgment of the Employment Tribunal[18]The Tribunal approached resolution of the issues before them on the following basis: A rest break is a period of at least 20 minutes during which the worker can do as he pleases and is not at the disposal of his employer ( Gallagher v Alpha Catering Services Ltd (T/A Alpha Flight Services) ); There is no intermediate category between "working time" and "rest periods" ( Sindicato De Medicos De Asistencia Publica (Simap) v Conselleria De Sanidad YConsumo De La Generalidad Valenciana [2000] IRLR 845, ECJ; Landeshuptstadt v Jaeger [2003] IRLR 804 , ECJ; and McCartney v Oversley House Management [2006] IRLR 514,EAT); and Some guidance as to the scope of the term "objective reasons" can be gained from the case of Adeneler v Ellinikos Organismos Galkatos in which the ECJ said:
"60) As this concept of 'objective reasons' is not defined by the Framework Agreement, its meaning and scope must be determined on the basis of the objective pursued by the Framework Agreement and of the context of the clause 5 (1)(a) thereof ... see, to this effect, inter alia case C-17/03 VEMW and others [2005] ECR 1-4983, paragraph 41, and the case law cited, and case C-323/03 Commission v Spain [2006] ECR 1-0000, paragraph 23). ………. 75)….the concept of 'objective reasons' within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out."
[19]Regarding the four issues remitted to them for determination, they concluded: Issue (a) They found that the Claimant's duties required him to be continuously available throughout each 12 hour shift and that he was liable to be interrupted during those periods. It was not, on the facts, possible for the Claimant's work to be arranged so as to allow for him to have an uninterrupted rest break during any of his shifts.[20]Certain options were explored in evidence. One was that the Respondent might provide mobile cover for their sites so as to provide brief cover for the Claimant to enable him to have an uninterrupted rest period. That option had, it seems, been a solution that was suggested by the Claimant. However, he accepted in cross examination that it was not a practicable one and the Tribunal accepted that it would have involved the introduction of a substantial layer of administrative organisation, increased staffing, increased training, logistical difficulties and difficulties in relation to annual leave, sickness absence, vehicle breakdown and emergency arrangements, all together with increases in the cost base of running the contracts. The Tribunal further accepted that that would have an effect on the wages that could be paid to employees such as the Claimant.[21]Another option was that of twinning or pairing guards. The Tribunal accepted that the cost of doing so would be so prohibitive as to result in the Respondent making a loss on the Croydon contract. Further, the Claimant himself accepted that there would be a doubling of costs, that that would mean that the Respondent would lose the next tender for the Croydon contract and if that happened, his position would be redundant.[22]The possibility of time off in lieu was suggested by the Claimant as the only feasible alternative he could think of. The Tribunal rejected it, explaining, at paragraph 35:
"With regard to the suggestion of time off in lieu, which was the principal solution relied upon by the Claimant, in the Tribunal's view this is not a solution anticipated by the Directive in the circumstances of this case. The compensatory rest in these circumstances would need to be within the period of work in order to comply with the objectives of the Directive. It cannot be objectively and reasonably sustained that the health and safety of the Claimant would be safeguarded by working non-stop through all of his shifts with the provision of subsequent additional compensatory rest after the shifts have ended, particularly when working on the night shift (see Jaeger above)."
Issue (b)[23]The Tribunal found, on the facts, that the Respondent afforded the Claimant with appropriate protection in order to safeguard his health and safety. They took account in particular of the fact that he was afforded breaks, that although he was on call during them and could be called, he was also allowed to start his break again if that happened. They noted that he was allowed to take his break whenever he liked and that he was the person who would know when the site was liable to be at its quietest. In short, the Tribunal found that the Claimant was being afforded rest during each shift. They rejected the notion that it was "compensatory rest" but that seems to be partly because of the approach of the previous Employment Appeal Tribunal and partly because they were regarding "compensatory rest" as requiring to have all the features of a "Gallagher" rest break, an approach with which, for reasons we have explained, we do not agree. Issue (c)[24]Since the Tribunal found that the Claimant was receiving what they referred to as "protective breaks" during the shifts for which he was being paid in full, he was found not to be entitled to any further payment. In the course of submissions before us, Mr Glyn said that what, in reality the Claimant was seeking to do was to "sell" his paragraph 24 rest and that could not, in principle, be right. To do so would be contrary to the objectives of the WTD. We agree. Issue (d)[25]This issue fell away once the first three issues had been determined, ultimately, in favour of the Respondent. Discussion[26]Whilst, as explained, our approach to the interpretation of paragraph 24 of WTR is different from that of the Employment Tribunal in respect that we consider that this case falls within paragraph 24(a), our conclusion on the Claimant's claim is the same as that of the Tribunal. We agree that the Respondent was not and is not in breach of their obligations under the WTR.[27]We are readily satisfied that the rest actually afforded to the Claimant amounted to an "equivalent period of compensatory rest". He was freed of all aspects of his work apart from the need to remain on the premises (which can be a feature of a "Gallagher" rest break) and to be on call. The latter, we accept, cannot be a feature of a "Gallagher" rest break (although, interestingly, it may not be working time, depending on the circumstances). He was, in principle, allowed a 20 minute break. He was compensated for the fact that he could not know in advance whether he would be interrupted and for the risk of actual interruption by being allowed to choose when to have his break and, if interruption occurred, to start his break again. These facts amply satisfy, in our view, the requirements of equivalence and compensation.[28]In these circumstances, it is not necessary to consider whether or not paragraph 24(b) was complied with. However, if we are wrong about that, we have no criticisms to make of the reasoning of the Employment Tribunal.[29]As to pay, we cannot fault the findings of the Tribunal. The Claimant has been paid for his shifts and he is not entitled to extra payment because he does not receive the "Gallagher" rest breaks to which he was never entitled. He is not, as Mr Glyn put it, entitled to "sell" his paragraph 24 rights.[30]As was the case before the Tribunal, as to the last issue, though argued before us, it falls away. Disposal[31]We will pronounce an order dismissing the appeal. For the avoidance of doubt, we will substitute for the present judgment of the Employment Tribunal a judgment in the following terms:
"The respondents have not breached the obligations they owe to the claimant under paragraph 24 of the Working Time Regulations 1998. The claimant's claim for a declaration under those regulations and compensation, all in terms of paragraph 30 thereof, is dismissed."

Cited in 3 later judgments