Compensatory rest – equivalent not identical

The case of Network Rail Infrastructure Ltd v Crawford [2019] EWCA Civil 269 will not win awards for excitement but is useful guidance when dealing with workers’ rest periods under the Working Time Regulations 1998 (WTR 1998), when those workers fall within the ‘special cases’ category under Regulation 21.

Workers in this category are excluded from the 20-minute rest break afforded to workers under Regulation 12.

The law

WTR 1998 provide workers the following rest periods and breaks, unless they are excluded workers or exempt:

(i) 11 hours’ uninterrupted rest per day;
(ii) 24 hours’ uninterrupted rest per week, or 48 hours’ uninterrupted rest per fortnight; and
(iii) rest breaks at work of 20 minutes when working more than 6 hours per day.

The excluded workers who are categorised as the ‘special cases’ include those who work shift patterns where they cannot get cover whilst taking a rest break. This includes workers in services relating to the reception, treatment or care provided by hospitals or similar establishments, residential institutions and prisons (Regulation 21(c) (i)), as well as those involved in transport, television, security and industries in which work cannot be interrupted on technical grounds (Regulation 21(c) (v).

Where these special case workers cannot take their 20-minute rest breaks at work when working more than six hours per day, they are instead entitled to compensatory rest that is “equivalent” (Regulation 24(a)). In Network Rail Infrastructure Ltd v Crawford [2019] EWCA Civil 269, the court considered what ‘equivalent’ means in practice.

The case

Mr Crawford is a railway signaler, working eight-hour shifts. He was unable to leave his post, despite the fact that there were sometimes only six trains per hour. With that in mind, Mr Crawford was, however, allowed to take short breaks in accordance with Network Rail’s rules that they should be taken “between periods of operational demand when there are opportunities for naturally occurring breaks”. Mr Crawford did this, and often the breaks amounted to more than the permitted 20 minutes under Regulation 12, although he was always on-call during these rest periods.

He was not happy with the arrangement and brought a claim, arguing that this policy of Network Rail’s did not comply with WTR 1998, as he was not enjoying sufficient compensatory rest.

He was unsuccessful at the employment tribunal. It was held that he had been permitted, and even encouraged, to take compensatory rest breaks, and he had neither requested nor been refused any alternative arrangements. The Employment Appeal Tribunal (EAT), however, was more sympathetic to his case. It held that Mr Crawford’s discontinuous periods of rest could not amount to ‘equivalent’ compensatory rest. In turn, Network Rail appealed the decision to the Court of Appeal arguing that the EAT had been wrong to hold that compensatory rest could not be provided through discontinuous breaks.

The Court of Appeal ruled that the tribunal’s judgement had been right all along. Network Rail had provided adequate compensatory rest even though it was in discontinuous blocks. It concluded that ‘equivalent’ rest under WTR 1998 was not the same as identical rest; the 20 minutes’ rest permitted under WTR 1998 did not, therefore, need to mirror what workers were permitted under Regulation 12, but it should have the same value “in terms of contributing to the well-being” of the worker, which involves making an evaluative comparison.

Our comments

This is a common-sense interpretation of the legislation. If the drafters had intended the rest to be the same under Regulations 12 and 24(a) then they would not have used the term ‘equivalent’. The whole purpose of the special case exemption was, in our view, an acknowledgement that workers in those categories would be unable to take regular 20-minute blocks of rest. It would, therefore, be rather contradictory if, having noted their exemption, Regulation 24(a) then required the same as the Regulation they were exempt from!

There are some key phrases which are useful to take away if you are managing exempt workers:

• Employers should look to check that compensatory rest is, in fact, being taken, and that it is of equivalent value in terms of providing sufficient rest. The judgement alluded to the equivalent value in terms of workers’ well-being. Going forward, checking that any compensatory rest has been assessed on those grounds, and not just in terms of timings, is advisable.
• Mr Crawford had accepted the rest periods as they were – he had not requested nor been refused any other practice. The tribunal thought this worthy of note, which rather suggests that, had the situation been different, it might have come to another conclusion. If a worker raises any issue vis-a-vis rest breaks, you should assess the arrangements in place, and where appropriate, enquiries should be made as to whether alternative arrangements can be made. It may be that operational requirements mean that there are no changes to be made, but the process is still important.

Further information

For more information, please contact Faye Rush.