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A change is as good as a rest

Meredith Hurst Tuesday, September 27, 2011

Well it is if you're a security guard at any rate. In the case ofHughes v The Corps of Commissionaires Management Ltdthe firm's David Gray-Jones appeared in the Court of Appeal. He represented the claimant and requested the court to consider the minimum permissible rest requirements between periods of work and the requirement for breaks during the course of working hours.

Unlike most workers Mr Hughes was not able to take uninterrupted rest breaks. His job duties required him to be continuously available to supervise and monitor access to the employer's site. He had a rest area but had to remain on call during rest periods. His breaks could be interrupted by visitors to the site but if this occurred he was permitted to start the rest break again. He would also have a complete uninterrupted break at night although he could never be sure in advance that that would be the position.

The applicable law defines a rest period as a period which is not working time, in other words, time during which the worker is not at his employer's disposal.  Where a worker's daily work is more than six hours, he is entitled to an uninterrupted rest break of not less than 20 minutes.

Certain types of work including that of security guards may be excluded from the basic requirements but the employer must afford the worker compensatory rest.  An earlier case calledGallagherheld that a break must be an uninterrupted period of 20 minutes and that downtime during which the employee was not working but could be at the employer's disposal could not retrospectively constitute a rest break. The worker must know at the start of the break that it is a rest break.

When the employment tribunal heard this case, the employer argued that it had provided compensatory rest at the end of the shift. This argument naturally failed as this would constitute daily rest in any event, that is rest between shifts. Hughes was concerned with rest breaks during the day and not those occurring between working days. The employer appealed.

The employment appeal tribunal rejected the employer's argument and set down a number of issues for the employment tribunal to determine. Whenever the worker works for more than six hours and cannot have a rest break and the employer cannot offer a period of compensatory rest, can the employer afford the worker protection in another way so to safeguard health and safety?

Questions of cost arise because how can an employer ensure security cover whilst also allowing for rest breaks? The employment tribunal considered various options including twinning or sharing guards so that one would always be available when the other was taking a break but this was regarded as unduly costly as was the proposal to provide a mobile guard across a number of sites.

The employment appeal tribunal adopted a common sense approach that whilst a clear uninterrupted break of 20 minutes could not be taken, provided the breaks were as near in character, quality and value to the uninterrupted rest break then this would be sufficient.  In this case, Hughes was freed from all aspects of work (in the rest area set aside for him) apart from the need to remain on the premises and to be on call to deal with visitor's ad hoc enquiries.

Hughes appealed. He asserted that any period of compensatory rest had to be a rest period and therefore outside working time. Since Hughes has to remain in the workplace and was on call to deal with visitor's enquiries, this break was taken within working time and therefore could not amount to compensatory rest.

The Court of Appeal agreed that a rest break where the worker could be interrupted did not meet the requirements of a proper rest break as required by the law but that it came as closed as possible to replicating an uninterrupted 20 minute break as required byGallagher.

It will be exceptional for a worker to be denied a rest break or uninterrupted compensatory rest but the common sense approach is to ensure that the breaks are as close as possible in character to this ideal standard.

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