A four-day on-call shift pattern is unlawful rules the High Court

The High Court has decided that South Yorkshire firefighters working four days, and being on call for four nights, were working in breach of the Working Time Regulations and, therefore, their shift arrangements had to be reviewed.

The Law

The Working Time Regulations provide workers with the following rest periods and breaks unless they are excluded workers or exempt:

• 11 hours uninterrupted rest per day (“daily-rest period”);
• 24 hours uninterrupted rest per week or 48 hours uninterrupted rest per fortnight (“weekly-rest period”); and
• Rest breaks at work – a rest break of 20 minutes when working more than 6 hours per day.

The provisions entitling workers to 11 hours rest per day and 24 hours rest per week (or 48 hours per fortnight) do not apply for either of the following:

• Shift workers when they change shift and cannot take a daily or weekly rest period between the end of one shift and the start of the next.
• Workers whose duties involve periods of work split up over the day, such as cleaning or catering staff working split shifts.

Should workers be exempt, “compensatory rest” will usually have to be given – i.e. if a worker is required to work during a period that would otherwise have been a rest period or rest break, the employer "shall wherever possible, allow [the worker] to take an equivalent period of compensatory rest, and in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, [the] employer shall afford [the worker] such protection as may be appropriate in order to safeguard the worker's health and safety."

Facts

South Yorkshire Fire and Rescue Authority (the Authority) operated a shift pattern at some fire stations known as "close-proximity crewing" (CPC), which involved a four-day shift of being on call at night. Under the Working Time Regulations, the time spent waiting or "on call" at the workplace, or at another place chosen by the employer, counts as “working time” and therefore both the daytime working and the CPC counted as working time, amounting to a continuous period of 96 hours working time. The Fire Brigade Union (the Union) brought an application for judicial review arguing that the CPC breached rest entitlements under the Working Time Regulations.

The Authority admitted that the CPC shift pattern breached the right to a daily rest period of 11 consecutive hours in each 24-hour period of work, but argued that the shift worker exemption applied.

Judgement

The court found that CPC involved one continuous shift and that therefore it could not be argued that the workers could not take a break between their shifts, i.e. between the end of one shift and the start of the next. Furthermore, the Authority had failed to offer the necessary compensatory rest.

Commentary

This case is another reminder that the employers’ obligations are under the Working Time Regulations regarding allowing workers rest periods and the fact that Courts are not sympathetic to employers seeking to argue an exemption under the Regulations.

For more information

We have advised a significant number of clients in both the social care sector and the housing sector on structuring their live-in care, sleep-in and on-call arrangements to ensure compliance. For a further briefing on this issue, please click here.

If you require assistance with your working practices, please get in touch with your usual contact in our Employment Team or speak to Anna Dabek.