Hughes v The Corps of Commissionaires Management Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias |
| Judgment Date | 08 September 2011 |
| Neutral Citation | [2011] EWCA Civ 1061 |
| Docket Number | Case No: A2/2010/2967/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 08 September 2011 |
[2011] EWCA Civ 1061
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE LADY SMITH sitting with two Lay Members
UKEAT/013/10/SM
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Thomas
and
Lord Justice Elias
Case No: A2/2010/2967/EATRF
Mr David Gray-Jones (instructed by Thomas Mansfield LLP) for the Appellant
Mr Caspar Glyn (instructed by Messrs Simons, Muirhead & Burton) for the Respondent
Hearing date: 20 July 2010
This is the judgment of the court
This appeal raises issues of construction relating to regulation 24 of the Working Time Regulations 1998.
The appellant is a security guard who works for the respondent employer. His employer provides security guarding services for various clients. The appellant was assigned to a site at Croydon owned by Orange, the telecommunications company, where the respondent was providing twenty four hour security coverage. The appellant guarded the site together with two other security officers. It was a single manned site so that on any one day one security guard worked a day shift, another worked a night shift, and the third had a rest day. This apparently is a typical arrangement for single manned sites.
This appeal raises the question whether the appellant was given an appropriate rest break during his shift as required by the Regulations. Unlike most workers, he was not able to take uninterrupted rest breaks. His job duties required him to be continuously available to supervise and monitor access to the Croydon site. He was provided with a kitchen area where breaks could be taken but he had to remain on call during these periods. He was permitted to leave a message on the reception desk where the monitoring and security equipment was placed saying that he was on his break and leaving a contact number. This meant, however, that his break might be interrupted by visitors to the site. If his break was interrupted then he was permitted to start it again. Sometimes, particularly at night, he would in fact have a complete uninterrupted break although he could never be sure in advance that that would be the position.
The appellant complained that this arrangement did not comply with the employer's obligations to provide him with a break under the Working Time Regulations.
The relevant law.
The Working Time Regulations give effect to Council Directive 93/04EC, known as the Working Time Directive. (This was subsequently amended by Directive 2003/88/EEC but not in any material way.) The Directive lays down minimum health and safety requirements for the organisation of working time. The Directive stipulates maximum hours in the working week and seeks to ensure that workers receive adequate periods of rest between periods of work, and also have proper breaks during the course of their working hours.
The following Recitals of the Directive identify its fundamental underlying purposes. They demonstrate that whilst the purpose is the protection of the health and safety of workers, some flexibility in applying the standards may be justified to take into account unusual or particular working arrangements where strict compliance would cause operational difficulties.
"Whereas….
(2) Article 137 of the Treaty provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers' health and safety. Directives adopted on the basis of that Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
(4) The improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.
(5) All workers should have adequate rest periods. The concept of "rest" must be expressed in units of time, ie in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.
………
(16) It is necessary to provide that certain provisions may be subject to derogation implemented, according to the case, by the Member States or the two sides of industry. As a general rule, in the event of a derogation, the workers concerned must be given equivalent compensation rest periods."
These principles are then reflected in the detailed rights conferred by the Articles of the Directive. Article 2 sets out the definitions. It defines both working time and rest periods as follows:
"working time" means any period which the worker is working, at the employer's disposal and carrying out his activities and duties, in accordance with national laws and/or practice."
"rest period" means any period which is not working time."
Chapter 2 is headed "Minimum rest periods — other aspects of the organisation of working time". Article 3 deals with daily rests and provides that workers should receive a minimum of 11 consecutive hours per 24 hour period; Article 4 with breaks; Article 5 with weekly rest periods, entitling a worker to a minimum of uninterrupted 24 hours in a seven day period; Article 6 provides for a maximum weekly working time of 48 hours; and Article 7 provides that workers should have at least four weeks' paid annual leave.
Article 4 is directly in issue in this case. It is as follows:
"Breaks
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 the 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 17 then identifies a number of areas where derogation from the rights conferred by the Directive is permitted. Article 17(2) is as follows:
"2. Derogations provided for in paragraphs 3, 4 and 5 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 3 of that Article then identifies particular kinds of work activities where derogations from some of the Articles, including the right to a break conferred by Article 4, may be permitted. They include "security and surveillance activities requiring a permanent presence." The appellant has conceded that the exception applies to him and his colleagues providing security work at the Croydon site, although for reasons we give later, we do not think that this concession was consistent with the arguments advanced before the Employment Tribunal.
The Working Time Regulations give effect to the Directive, frequently by adopting virtually the same language. The material provisions are as follows:
"2 Interpretation
(1) In these Regulations —
………
'rest period' in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;
………..
'working time', in relation to a worker, means –
(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties….
and 'work' shall be construed accordingly;"
Regulation 12 provides that there must be certain rest breaks in the course of a worker's working time.
"12) Rest Breaks
(1) Where a worker's daily working time is more than six hours, he is entitled to a rest break."
The regulation then specifies that the details of the entitlement, including the duration of the break and the terms on which it is granted, should be in accordance with any relevant collective agreement. Absent any such agreement, the default position is set out in regulation 12(3) as follows:
"(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 Government chose to take advantage of the right to create derogations conferred by Article 17 of the Directive. Part III of the Regulations sets out various provisions where the regulations have either been excluded altogether or have been modified in certain respects. Certain sectors of activity are excluded by regulation 18; domestic service by regulation 19; those working unmeasured working time by regulation 20; there is then a category defined as "other special cases" in regulation 21 with respect to whom certain of the rights are excluded including the right to a break under regulation 12; and regulation 23 empowers collective parties to modify or exclude certain rights again including regulation 12 rights.
For the most part the exceptions are defined by reference to the activities in which a worker is engaged. The relevant exception here is regulation 21(b) which provides:
"Subject to regulation 24, regulations ….12(1) do not apply in relation to a worker…
… (b) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers of security firms …"
The fact that exclusions or exceptions have been made...
To continue reading
Request your trial
-
Mr M Adejare v NSC 365 Ltd T/a National Security: 3334629/2018
...16 Case No: 3334629/2018 (V) W Devis & Sons Ltd v Atkins [1973] 3All ER 40, CA; and Hughes v Corps of Commissionaires Management Ltd [2011] EWCA Civ 1061, CA. 91. As regards wrongful dismissal, I have considered Article 3, Extension of Jurisdiction (England & Wales) Order 1994, which is the......
-
Network Rail Infrastructure Ltd v David Crawford
...24 (a) for the purposes of the Working Time Regulations 1998. Following the case of Hughes v Corps of Commissionaires Management Ltd [2011] IRLR 915, a period of compensatory rest must so far as possible ensure that the period which is free from work is at least 20 minutes (paragraph 54) (......
-
Mr S Gillani v Secretary of State for Justice: 2204749/2021
...WTR 1998? The Court of Appeal provided the following guidance in the case of Hughes v Corps of Commissionaires Management Ltd (No. 2) [2011] IRLR 915, CA, (para. 54, per Elias LJ): “it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as ......
-
Mr F Ahmed v Ward Security Ltd: 2207254/2021
...WTR 1998? The Court of Appeal provided the following guidance in the case of Hughes v Corps of Commissionaires Management Ltd (No. 2) [2011] IRLR 915, CA, (para. 54, per Elias LJ): “it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as ......
-
Minimum Rest Breaks And The Working Time Regulations
...this was more beneficial, from a health and safety point of view. Relying on Hughes v The Corps of Commissionaires Management Ltd [2011] EWCA Civ 1061 the EAT held that the employer's system was not compliant. In Hughes the Court of Appeal (Elias LJ) said that there should be a proper unint......