Understand the basics of the Working Time Regulations, working hours trends, holidays and special leave.
Here we list a selection of key cases, reported since 2010, on working time, providing a summary of the decision and implications for employers.
Santos Gomez v Higher Level Care Ltd | Employment Appeal Tribunal | 18 May 2016
(unreported, UKEAT/0017/16 18 May 2016, EAT)
Issue: failure to provide rest breaks and injury to feelings
An employee working for an employer who provided care for vulnerable young people won her case that the employer failed to provide her with the 20 minute rest breaks required by the Working Time Regulations 1998 (WTR). She won compensation of £1,220 in respect of financial loss, but was she entitled to compensation for injury to feelings too?
The Employment Appeal Tribunal held that she was not entitled to an award for injury to feelings as well. Claims for failure to allow rest breaks under the WTR are like claims for breach of contract which do not include compensation for injury to feelings. Compensation for injury to feelings is usually linked to anti-discrimination statutes or personal injury claims.
Implications for employers
Employers should ensure that employees and workers are provided with the necessary breaks required under the WTR.
Rest breaks should be 20 minutes if working for more than 6 hours per day.
Compensation for injury to feelings is available in certain types of employment claims; mostly discrimination claims or those with a personal injury element. It is not available for unfair dismissal or breach of contract claims.
Employers can face tribunal claims if a breach of rest break entitlements has occurred.
The remedies for breach of rest break provisions include a declaration that the breach occurred and compensation which is just and equitable in all the circumstances.
Compensation includes any normal financial loss sustained which is attributable to the lost rest break, but does not include any injury to feelings aspect of compensation.
If physical or psychological injuries result from a breach of the WTR, employers may still be exposed to tort claims in the civil courts for failure to honour a duty of care towards the employee concerned.
Truslove v Scottish Ambulance Service | Employment Appeal Tribunal | 8 Apr 2014
(unreported, EATS/0053/13 8 April 2014, EAT)
Issue: On-call working
Two ambulance paramedics were sometimes required to provide nightly relief cover at different ambulance stations, away from their home base. As the paramedics all had to meet a target time of three minutes within which to respond to a call they were obliged to stay at accommodation of their choice within a three mile radius of the other station. The paramedics claimed that this time spent on call counted as working time and so they were entitled to a rest period according to the Working Time Regulations.
The Employment Appeal Tribunal (EAT) held that the employment tribunal had been wrong to find that the paramedics were at rest while on call. The EAT focused on whether the employee was on call where the employer required that employee to be. The EAT held that as the paramedics lacked the freedom to be anywhere other than within a three mile radius of the station their on call time was working time.
Implications for employers
- Employers must ensure all workers are allowed to take their minimum daily rest period of 11 hours' uninterrupted rest per day, or an equivalent period of compensatory rest.
- Workers must also have a rest break of 20 minutes when a day's working time is more than 6 hours.
- On call workers may have longer periods of ‘working time’ than employers may think as numerous cases have widened the scope of on call time.
- Whether time is rest time and not working time depends on the quality of rest the worker gets can get. If the worker cannot ‘unshackle himself from the rigours of the employer’s control’ all the time on call will be classed as working time.
- Emergency or 24 hour service workers will therefore probably be on working time rather than rest time in many cases.
- The problem is that there is either working time or rest time, but there is no hybrid third category. Over six years ago the EU proposed a third category, the ‘inactive’ part of on call time, which would only be treated as working time if it was agreed to do so. These proposals were not implemented.
- Until the law changes employers must ensure that those employees who are restricted while they are on call have proper rest periods in relation to the entire on call period.
Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another | European Court of Justice | 10 Sep 2015
(unreported, Case C‑266/14 10 September 2015, ECJ)
Issue: Whether travelling to work is considered working time
This Spanish case involved technicians who, following the closure of regional offices, were assigned to a central office in Madrid and travelled to particular provinces in Spain installing and maintaining security systems. As a result of the decision to close the regional offices the technicians no longer attended an office at the start and end of each day but travelled directly to and from customers’ premises. Issues arose about what counted as working time.
The employer said that the first journey of the day (from home to the first appointment) and the last journey of the day (from the last a appointment to home) were not working time.
The technicians brought a claim against the employer saying that the time spent travelling at the beginning and end of the day by a worker constituted ‘working time’ and was not a ‘rest period’.
The European Court of Justice (ECJ) followed the Advocate General’s opinion and decided that workers who are not assigned a fixed place of work may count the time spent travelling from their home to their first appointment and the time spent travelling home from their last appointment as working time for the purposes of the Working Time Directive.
The Directive does not provide an intermediate category between ‘working time' and ‘rest’ and the court felt that the following three criteria for determining 'working time’ were met:
- Being at the workplace.
- Being at the disposal of the employer.
- Carrying out the activity or duties.
The time spent travelling to and from the workers' homes during the first and last journeys of the day was therefore working time rather than simply a rest break because the workers cannot use that time freely to pursue their own interests.
Implications for employers
- Although this decision relates to a Spanish case it concerns the EU Working Time Directive.
- The Working Time Regulations 1998 implement the same Directive in the UK.
- The Working Time Regulations 1998 do not deal with travel to and from places of work or between places of work.
- Following this case time spent travelling to and from home to certain jobs during the first and last journeys of the day may be working time, but only for certain workers with no habitual place of work.
- Non–statutory guidance (available on Gov.uk) suggests that normal travel to and from work and travelling outside normal working hours is not working time.
- Time spent travelling by workers who have to travel as part of their job, for example travelling sales representatives, should be considered as working time.
- Employers should note that just because time counts as working time for the purposes of assessing the number of hours worked, this does not necessarily mean that time should be paid.
- Those workers who have no fixed work place and a large territory may clock up more working time by their travelling to and from work.
- Employers may consider scheduling early and late appointments at sites close to workers’ homes.
- This decision may have an impact on employers that use peripatetic workers, such as the care sector and these employers should carefully review working practices to ensure overall working time and rest breaks are adequate and do not breach the working time legislation.
- More employers may use clauses to opt out of the Working Time Directive 48-hour working week as opt-outs are still permitted in the UK.
Arriva South London Ltd v Nicolaou | Employment Tribunal | 21 Dec 2011
(unreported, EAT//0293/11 21 December 2011)
Issue: Working time opt-out agreements
A bus driver claimed he had been subject to a detriment for refusing to sign an opt-out agreement from the Working Time Regulations 1998 (WTR). He said the employer had placed a blanket ban on drivers from earning overtime and working on rest days if they had not opted out of the 48 hour limit on the working week. He had therefore been refused working overtime on his rest days.
The Employment Appeal Tribunal (EAT) held that the employee lost his claim and the policy adopted by the employers was reasonable for them to comply with their statutory duty under the WTR. They had not set out to penalise the driver for not opting-out. The EAT said there was a conflict between an employer’s duty under WTR and the protection against suffering a detriment.
Implications for employers
- The WTR implement the European Working Time Directive which sets a limit of 48 hours work for each seven days of work over the relevant reference period. In the WTR the reference period is usually 17 weeks.
- Many employers ask workers to opt-out of the 48 hour working week as the law currently allows employers to do this.
- An employer cannot force a worker to sign an opt-out.
- Employees can always opt back in to the WTR by giving written notice (of up to a maximum period of three months).
- Employers must not subject employees to any detriment if they refuse to opt-out.
- If an employee has opted out and the employer then refuses to let that person work overtime, this is not a legal’ detriment’ to that employee.
Hughes v Corps of Commissionaires Management (No 2) | Court of Appeal | 8 Sep 2011
 IRLR 915, CA
Issue: Whether on-call time is working time
A security guard was employed with two other security guards (or commissionaires) to provide 24 hour security to a particular client. Each guard worked a 12 hour shift, so that on any given day, one guard was working the day shift, one was working the night shift and the other was having a rest day.
The guards could take rest breaks in the kitchen area, but while on a break they were effectively on call because they left a sign on reception saying how they could be contacted if necessary. The guards were not therefore guaranteed uninterrupted rests. They could choose when to take their breaks and if interrupted by visitors to the site they could start their break from the beginning again. Sometimes, especially at night, they would in fact have a complete uninterrupted break, although it was never clear in advance that this would happen.
The guard complained that he was not receiving proper rest time or compensatory rest under Regulation 12 of the Working Time Regulations 1998 (WTR).
The Court of Appeal held that because the guard could start his rest break again if it was interrupted, he was given ‘compensatory rest’ under the WTR. In reality the period of rest could be significant if the break started again after an interruption. This was better than giving an additional break on a later shift as envisaged in a previous, similar case (Gallagher and others v Alpha Catering Services Ltd (t/a Alpha Flight Services)  IRLR 102 CA).
Implications for employers
- Employers must ensure that, where possible, workers are given the rest breaks to which they are entitled to under the Working Time Regulations 1998.
- Employers must give workers rest breaks if their daily working time is more than six hours. (See Regulation 12(1) of the Working Time Regulations 1998).
- The uninterrupted rest period should be at least 20 minutes which the worker can spend away from their workstation (unless there is a collective agreement to the contrary).
- Some employers may be required to work during a rest break if they fall within one of the numerous exceptions concerning rest breaks. These exceptions include cases where the worker's place of residence and place of work are distant from one another, the worker is engaged in ‘security and surveillance activities requiring a permanent presence’, or the worker's activities involve the need for continuity of service or production.
- If a worker is required to work during a period that should have been a rest break, employers should then allow the worker to take an equivalent period of compensatory rest.
- As long as an employer provides compensatory rest, it does not need the same qualities as the normal rest break. However, employers must make the period as close as possible to a rest break (for example, by allowing the worker to restart the rest break if interrupted).
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.