Network Rail Infrastructure Ltd v David Crawford
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Sales,Lady Justice Asplin |
| Judgment Date | 05 March 2019 |
| Neutral Citation | [2019] EWCA Civ 269 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2019 |
| Docket Number | Case No: A2/2017/3242 |
[2019] EWCA Civ 269
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Shanks
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Sales
and
Lady Justice Asplin
Case No: A2/2017/3242
Mr Andrew Burns QC (instructed by Eversheds Sutherland LLP) for the Appellant
Ms Naomi Ling and Ms Elizabeth Grace (instructed by Thompsons Solicitors) for the Respondent
Hearing date: 7 th November 2018
Approved Judgment
INTRODUCTION
The Claimant in these proceedings, the Respondent to this appeal, is a signaller employed by Network Rail Infrastructure Ltd (“Network Rail”). He claims that Network Rail has not provided him with the rest breaks to which he is entitled under the Working Time Regulations 1998 (“the WTR”). His claim was dismissed by an Employment Tribunal sitting at London Central, chaired by Employment Judge Norris; but it was allowed by the Employment Appeal Tribunal (HH Judge Shanks sitting alone).
The Claimant is represented before us by Ms Naomi Ling and Network Rail by Mr Andrew Burns QC. Both counsel appeared in both tribunals below.
THE BACKGROUND LAW
The WTR represent this country's implementation initially of EU Directive 89/391/EEC and subsequently of Directive 2003/88/EC (“the Directive”), which provide for various protections for workers as regards working time. The Directive is a health and safety measure. We were referred to the decision of the CJEU in United Kingdom v Council of the European Union (C-84/94) [1997] ICR 443, in which the Court observed, at para. 15 of its judgment (p. 501 D-E), that a broad interpretation of the relevant legislative powers should be adopted, and continued:
“Moreover, such an interpretation of the words ‘safety’ and ‘health’ derives support in particular from the preamble to the constitution of the World Health Organisation to which all the member states belong. Health is there defined as a state of complete physical, mental and social wellbeing that does not consist only in the absence of illness or infirmity.”
Chapter 2 of the Directive is headed “Minimum Rest Periods – Other Aspects of the Organisation of Working Time”. It provides for various different kinds of protection relating to working time. It is only necessary for our purposes to note that there is separate provision for “rest periods” (see articles 3 and 5), which fall between periods of working time, and “rest breaks” (article 4), which occur during working time. This appeal is concerned with the latter. Article 4, which is headed “Breaks”, reads:
“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.”
It will be noted that the Directive does not itself specify the characteristics of the breaks provided for, not even their minimum duration: that is left to agreement at the industrial level or, “failing that”, national legislation. That reflects a realistic recognition that what kinds of break are most likely to promote the well-being of the worker and fit with the reasonable needs of the employer is likely to vary enormously across the world of work and if possible should be agreed between the “industrial partners”.
Regulation 12 of the WTR is headed “Rest Breaks” and reads (so far as material):
“(1) Where a worker's working time is more than six hours, he is entitled to a rest break.
(2) The details of the rest break to which a 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.
(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.
(4)-(5) …”.
It will be seen that the primary provision of regulation 12 is that the details of the rest break will be a matter of agreement between employer and workers, and the provision in paragraph (3) for an uninterrupted 20-minute period simply represents a default. This reflects the philosophy of the Directive referred to above, though I am not sure to what extent it reflects the reality on the ground in this country. To similar effect, regulation 23 (a) provides that a collective agreement or a workforce agreement (for short, a “relevant agreement”) may “modify or exclude the application of” various regulations, including regulation 12 (1) “in relation to particular workers or groups of workers.”
The effect of regulation 12, in a case where there is no relevant agreement, is that the worker is entitled to a rest break which (i) is uninterrupted; (ii) lasts at least 20 minutes; and (iii) may be spent away from the workstation. In Gallagher v Alpha Catering Services Ltd [2004] EWCA Civ 1559, [2005] ICR 673, this Court identified a further element as necessarily implicit, namely that the worker must know at the start of his or her rest break that they will have 20 minutes' uninterrupted rest: see para. 50 of the judgment of Peter Gibson LJ (p. 684 A-B). Breaks satisfying all those requirements are often described as “ Gallagher rest-breaks”, though only the fourth requirement derives from Gallagher itself.
Regulation 21, which reflects article 17.3 of the Directive, provides that, subject to regulation 24, the provisions of various regulations, including regulation 12, do not apply to workers in the circumstances specified under heads (a)-(f). We are concerned only with (f), which reads:
“Where the worker works in railway transport and –
(i) his activities are intermittent;
(ii) he spends his working time on board trains; or
(iii) his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.”
Regulation 23 (a) provides that a relevant agreement may “modify or exclude the application of” various regulations, including regulation 12 (1): since regulation 12 (3) operates as a gloss on regulation 12 (1), that means that the requirement for “an uninterrupted period of not less than 20 minutes” can be excluded or modified. Regulation 23 makes clear that the saving at the start of regulation 12 (3) allows a relevant agreement to exclude the rights conferred by regulation 12 as well as to enhance them.
Regulation 24, which reflects provisions found in article 17.2 of the Directive, is headed “Compensatory Rest” and is the provision with which this appeal is principally concerned. It reads:
“Where the application of any provision of these Regulations is excluded by regulation 21 …, or is modified or excluded by means of a collective agreement or a workforce agreement under regulation 23(a), 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 reference to a worker being “required … to work during a period which would otherwise be a rest period or rest break” is rather awkwardly expressed, but it is clear enough that the reference is to a case where, by reason of regulation 21 or a relevant agreement, the worker has not been accorded a rest break (or rest period) to which he or she would otherwise have been entitled. It therefore applies where a worker is not given an entitlement to an uninterrupted 20-minute rest break. The worker's primary entitlement in such a case is to compensatory rest under (a), which applies “wherever possible”; and the alternative entitlement at (b) applies only where it is not possible (“for objective reasons”) to provide such rest, which it is contemplated will only occur exceptionally. It is not necessary on this appeal to consider what form the required “appropriate protection” under (b) may take, but it will necessarily be of a different character from the compensatory rest under (a): possibilities canvassed in the oral submissions before us included special health checks or (if appropriate) additional rest periods before the next shift or longer rest breaks in that shift.
By regulation 30 (1) a worker may present a complaint to an employment tribunal that his employer “has refused to permit him to exercise any right he has under … regulation 24, in so far as it applies where regulation … 12 (1) is … excluded”. Paragraph (2) requires any such claim to be brought before the end of three months beginning with the date on which it is alleged that the exercise of the right should have been permitted.
THE BACKGROUND FACTS
The Claimant's job is to provide relief cover – that is, to stand in for absent colleagues – for a group of five signal boxes in Surrey and Sussex: Oxted, Dorking, Reigate, Lancing and Whyteleafe South/Littlehaven. All but one of the boxes (Lancing) are single-manned. Except on Sundays, eight-hour shifts are worked at each of the boxes, starting at 6 a.m., 2 p.m. and 10 p.m. On Sundays there are two twelve-hour shifts, starting at 6 a.m. and 6 p.m.
In April 2013...
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