From 6 April 2021, it will be the responsibility of medium and large private sector organisations to assess whether contractors working through an intermediary come within the ambit of IR35.
Under the Working Time Regulations (WTR) a worker is entitled to a 20-minute rest break away from their workstation if their daily working time exceeds six hours. However, there are limited circumstances where employers are exempt from providing this rest break so long as they ensure that “compensatory rest” is given.
A recent case of Crawford v Network Rail Infrastructure Ltd considered whether compensatory rest has to be taken in one uninterrupted period or whether a series of short breaks can be aggregated to amount to the requisite time.
Mr Crawford worked for Network Rail as a railway signalman. He worked on single-manned boxes on 8-hour shifts. Network Rail had a document that set out the provision of rest breaks for signallers that provided that:
“At such (single-manned) locations breaks must be taken between periods of operational demand when there are opportunities for “naturally occurring breaks”...at such locations the 20-minute break may be an aggregate of shorter breaks.”
As Mr Crawford worked in railway transport and his activities were linked to transport timetables, and to ensuring the continuity and regularity of traffic, the right to a 20-minute rest break did not apply, but compensatory rest had to be provided.
Network Rail felt that aggregated breaks were sufficient to meet the compensatory rest requirement for the 20-minute break. Mr Crawford argued that the requirement for compensatory rest was not being met and, therefore, he made a complaint to the Employment Tribunal for breach of the WTR.
The Tribunal agreed with Network Rail. Mr Crawford appealed this decision to the Employment Appeal Tribunal (EAT), who upheld Mr Crawford’s appeal.
The EAT found that whilst Mr Crawford could still be on call during compensatory rest, the compensatory rest must amount to a break that lasted at least 20 minutes. The EAT referenced and followed the approach in the case of Hughes v The Corps of Commissionaires Management Ltd in which a security guard who worked alone on site was permitted to take breaks from his desk in the kitchen whenever he liked but was always on call. If he was disturbed whilst taking a break, he would be able to return to the kitchen and start his break again following dealing with the incident.
This case highlights that rest given by employers to compensate for any missed or disturbed 20-minute break entitlement must be a single uninterrupted period of at least 20 minutes. Employers should have this in mind when planning compensatory rest breaks and cover for these.
It is interesting to note that the position is less clear when it comes to daily or weekly rest entitlements. The prevailing view is that compensatory rest should equal the length of the interruptions to the period of rest and not the entirety of that period. However, this is an area where complete clarity is not attainable as the entitlement to rest under the WTR is to uninterrupted rest.
For more information
We have advised a significant number of clients, including in the social care sector and the housing sector, on structuring their services and rotas in a way that ensures compliance. If you require assistance with your working arrangements, please get in touch with your usual contact in our Employment Team or speak to Faye Rush. You can find out more about our employment work on our website.
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