Alpha Catering Services Ltd t/a Alpha Flight Services v JP Gallagher and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE BUXTON,LORD JUSTICE JACOB |
| Judgment Date | 08 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1559 |
| Docket Number | A2/2004/0694 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 November 2004 |
[2004] EWCA Civ 1559
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE MCMULLEN QC,
MS K BILGAN and MISS D WHITTINGAM)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Buxton
Lord Justice Jacob
A2/2004/0694
MR PETER OLDHAM (instructed by Messrs Berwin Leighton Paisner, London EC4A 9HA) appeared on behalf of the Appellant
MR ANDREW HOGARTH QC (instructed by Messrs OH Parsons & Partners, London WC2R 8PR) appeared on behalf of the Respondent
This is an appeal by Alpha Catering Services Ltd, trading as Alpha Flight Services ("Alpha"), from the order made by the Employment Appeal Tribunal ("EAT") on 17th March 2004 whereby it allowed the appeal of Mr JP Gallagher and 27 other employees of Alpha (together "the Employees") from the decision of an Employment Tribunal ("ET") sitting at London South. By that decision, sent to the parties on 7th October 2003, the ET determined that the Employees were excluded by Regulation 21(c) of the Working Time Regulations 1998 ("the Regulations") from the right under Regulation 12 to rest breaks. Accordingly, the ET dismissed the Employees' originating applications. On certain other points in dispute the ET decided in favour of the Employees and the EAT upheld the ET's decision on those points.
Alpha applied for permission to appeal against the EAT's decision on the Regulation 21(c) point and the EAT granted such permission. Alpha sought but was refused permission to appeal against the EAT's affirmation of the ET's decision on the other points.
By its appellant's notice Alpha sought such permission from this court. At the hearing of the appeal we heard Alpha's application for permission to appeal on three points. I will deal with that application after I consider Alpha's application on the Regulation 21(c) point.
The Regulations are derived from Council Directive 93/104/EC of 23rd November 1993, commonly known as the Working Time Directive ("the Directive"). The Directive lays down, as is stated in Article 1.1, minimum safety and health requirements for the organisation of working time. Article 1.2 provides that the Directive applies to minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time. By Article 2.1 various definitions are given. Relevant to this appeal are the definitions of "working time" as meaning "any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national law and/or practice" and "rest period" as meaning "any period which is not working time".
Article 3 provides for daily rest. Article 4 relates to breaks and is in this form:
"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 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 5 relates to a weekly rest period, Article 6 to maximum weekly working time and Article 7 to annual leave.
The Directive provides by Article 15 that member states are entitled to apply or introduce provisions more favourable to the protection of the safety and health of workers than is provided by the Directive.
Certain derogations are permitted in Article 17, paragraph 2:
"Derogations 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: …"
Paragraph 2.1 then proceeds, so far as relevant, in this way:
"from Article 4 …
(c) in the case of activities involving the need for continuity of service or production, particularly: …"
I break off at this point to say that there then follow eight numbered paragraphs, of which six specify activities or industries and two specify particular types of workers. Sub-paragraph (ii) refers to "dock or airport workers". Paragraph (viii) refers to "workers concerned with the carriage of passengers on regular urban transport services". A further derogation from Article 4 is permitted by Article 17.2.1(d):
"where there is a foreseeable surge of activity, particularly in:
(i) agriculture;
(ii) tourism;
(iii) postal services; …"
The Regulations were intended to implement the Directive. For the most part they follow the language of the Directive, although there are some, in my view minor, differences. Regulation 2 contains definitions of "rest period" and "working time" which accord with the Directive's definitions. As in the Directive, there is no definition in the Regulations of a break or a rest break.
Regulation 12(1) sets out the basic entitlement of a worker to a rest break where his daily working time is more than six hours. By paragraph (2):
"The details of the rest break to which an adult worker is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement."
There is no relevant collective agreement or workforce agreement. By paragraph (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."
The ET found that the Employees had no workstation.
Regulation 18 provides for Regulation 12(1) not to apply (inter alia) to certain sectors of activity, including air transport, or to the activities of doctors in training.
Derogations from Regulation 12(1) include the following in Regulation 21 (headed "Other special cases"). By Regulation 21(c), subject to Regulation 24, Regulation 12(1) does not apply in relation to a worker:
"where the worker's activities involve the need for continuity of service or production, as may be the case in relation to -
…
(ii) work at docks or airports."
By Regulation 21(d), subject again to Regulation 24, Regulation 12(1) does not apply in relation to a worker:
"where there is a foreseeable surge of activity, as may be the case in relation to -
(i) agriculture;
(ii) tourism; and
(iii) postal services".
Regulation 24 entitles a worker to compensatory rest in these terms:
"Where the application of any provision of these Regulations is excluded by regulation 21 … 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."
The facts
Alpha is a large company in the airline catering business. A substantial part of its work consists of the delivery to and loading onto aircraft of airline meals, drinks and sundry items, and what is known as the "de-catering" of aircraft which have arrived, that is to say the unloading of catering material from such aircraft.
Alpha services airlines which use Gatwick Airport. It has premises near to the airport. There food is prepared and packed, and drinks and other items stored. Among its 400 employees at Gatwick are those in the Service Delivery Department, numbering between 150 and 170 persons. They have duties connected with the transportation of food and other items to and from the airport. They include drivers, designated FEH1s; loaders, FEH2s; and service team representatives, STRs. The Employees are FEH1s or FEH2s or STRs.
The ET made the following findings of fact:
"(4) FEH1s and FEH2s work together on shifts as teams of two. Their working days start and finish at [Alpha's] premises. Their main function is to load their heavy goods vehicle, drive it to the airport, deliver food and equipment to the aircraft and/or 'de-cater' them and return whatever has been removed to [Alpha's] premises. The round-trip (including stops to collect drinks from the nearby bonded warehouse) is typically 6 to 7 miles in total. It seems that, generally speaking, a team will complete two round trips per shift.
(5) Very often there are intervals when FEH1s and FEH2s are at the airport but have no duties to undertake immediately. Such time is usually referred to as 'downtime'. During downtime the driver/loader team must maintain radio contact with [Alpha]. A hand-held radio is provided and one member of the team must have it in his possession at all times. The FEH1s and FEH2s do not have access to the airport facilities. Unlike the STRs, they are not provided with passes enabling them to enter the airport buildings. There is a toilet which they can use and a designated 'smoking shed'. Many take refreshments with them and consume them during...
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