6. Rest periods and breaks

Setting a minimum standard for daily, weekly and in-work rest is at least as important as limiting working time, from the point of view of workers’ health and safety. The implications of shift, on-call and other working arrangements for rest provision, and the exclusions allowing employers to side-step or vary rest provisions are significant, making this a big issue for union negotiators.

In the main WTR regulations “rest” is defined as “a period which is not working time, other than a rest break or leave to which the worker is entitled under these regulations” (WTR 2). This is in addition to provisions for rest breaks during the working day. A worker entitled to rest (and annual leave) both under the regulations and under separate provision (including contractual provision) is entitled to take advantage of the more favourable (WTR 17). Parallel regulations make the same point for workers on fishing vessels (FVR 12) and inland waterways (IWR 12).

The Office for Rail Regulation (ORR) points out that WTR is additional to the Railway (Safety Critical Work) Regulations 1994 and contractual arrangements, and doesn’t reduce the level of protection against fatigue that they offer. Department for Transport (DfT) guidance on the RTR regulations points out that minimum daily rest provisions under the existing European drivers’ hours rules continue to apply to drivers, and have been extended to other mobile workers, trainees and apprentices.

Advance knowledge of when rest periods will occur can form part of securing a good work-life balance. Guidance in civil aviation (CAP 371) covers the planning of days off, the need to notify crew well in advance, and consuilting on/agreeing rosters. It recommends that a range of factors should be taken into account in planning duty periods, e.g. allocation of work patterns which avoid such undesirable practices as alternating day/night duties, the positioning of crew so that a serious disruption of established sleep/work patterns occurs, or scheduling rest periods of between 18 hours and 30 hours especially after long flights crossing several time zones.

The seafarers’ regulations (SHWR) include a strict requirement to post notices of scheduled hours of rest. The Maritime and Coastguard Agency (MCA) warns about the contribution of irregular working hours to fatigue and advises on the importance of scheduling reasonably stable working hours over a voyage.

WTR daily rest

Under the main WTR regulations a worker is entitled to a rest period of not less than 11 consecutive hours in each 24-hour period during which s/he works for the employer (WTR 10). This can be varied only if there is a collective or workforce agreement that provides for alternative periods of compensatory breaks from work (see page 49). Days off are taken in addition to annual leave.

A young worker is entitled to a daily rest period of not less than 12 consecutive hours, although this may be “interrupted in the case of activities involving periods of work that are split up over the day or of short duration”.

Special case exclusions (see page 21) may remove this specified daily rest entitlement from a range of workers including those working offshore, in urban passenger transport, rail workers on board trains (as defined, see page 23) and doctors in training, subject to an entitlement to compensatory rest (see page 49). The provision does not apply either to mobile workers covered by WTR, who are instead entitled to “adequate rest” (see page 44).

WTR weekly rest

Under the WTR regulations (WTR11), workers have a separate entitlement to an uninterrupted rest period of not less than 24 hours in each seven-day period during which s/he works for the employer. This is in addition to paid annual leave. As with daily rest (above) some workers may have compensatory or adequate rest instead of the standard weekly rest arrangement.

The employer can determine weekly rest entitlement as either:

• two uninterrupted rest periods each of not less than 24-hours in each 14-day period; or

• one uninterrupted rest period of not less than 48-hours in each 14-day period.

Unless there is a “relevant agreement”, each seven-day period is deemed to start at the start of each week (at midnight between Sunday and Monday (WTR 11(4)(b) and 11(6)).

A young worker is entitled to at least 48-hours in each seven-day period (WTR 11(3)). This may be reduced to not less than 36 consecutive hours “where this is justified by technical or organisational reasons”.

Long stretches of work without a rest period may be particularly inappropriate for young people and Department for Business, Enterprise and Regulatory Reform (BERR) guidance says that their weekly rest “cannot be averaged over a two-week period, and should normally be two consecutive days”. General union Unite highlights a recent agreement at the Royal Bank of Scotland stating that members of staff should not work more than five days in any one given week.

No overlap in WTR

Minimum daily and weekly WTR rest periods provide a total entitlement to 90-hours in a week (with rest breaks when no work is done not counting as working time). The right to a 24-hour weekly rest period cannot include “any part” of a daily rest period as defined in WTR 10 “except where this is justified by objective or technical reasons or reasons concerning the organisation of work” (WTR 11(7)).

Daily and weekly rest provisions do not apply to shift workers when they change shifts and cannot take the rest periods between the end of one shift and the start of the next one; nor to workers whose work is split up over the day, for example cleaners. Where rest is missed compensatory rest should apply (see page 49).

Adequate rest in WTR

Adequate rest takes the place of the defined rest periods and night worker limits set out in the regulations as far as mobile workers are concerned (WTR 24A). This is separate from the provision for “adequate rest breaks” for all workers whose pattern of work is monotonous or pre-determined (see page 48).

BERR guidance defines adequate rest as rest periods which should be sufficiently long and continuous to ensure that fatigue or other irregular working patterns do not cause workers to injure themselves, fellow workers or others, and that they do not damage their health, either in the short term or in the longer term. It omits to mention that this should be ”expressed in units of time” (WTR 24A(3)).

Other rest arrangements

Under the fishing regulations (FVR), there is an entitlement to adequate rest, as defined in WTR for mobile workers (see above). However, without prejudice to the “generality” of this, the FVR regulations define minimum rest as 10 hours in any 24-hour period, which can be divided into no more than two consecutive periods, separated by not more than 14 hours (one of which must be at least six hours); and not less than 77 hours for any seven-day period (FVR 7). The Secretary of State can grant exceptions either in individual cases or “classes” of cases for objective or technical reasons or reasons concerning the organisation of work (FVR 13) and may take account of compensatory leave periods. The fishing industry Code of Practice on working time highlights scope for compensatory rest and relaxation within the pattern of activity of most fishing vessels.

The inland waterways regulations (IWR) provide an entitlement for adequate rest which takes the place of daily and weekly rest periods for these mobile workers. This is defined simply as not less than 77 hours for each seven days taken in any rest period that is not a rest break. Guidance from the Maritime and Coastguard Agency points out that one long break is more effective than a number of relatively short breaks in providing adequate rest: “Where workers have to travel home to rest, longer periods are appropriate than where facilities for sleep or rest are provided on the vessel”.

Seafarers’ regulations (SHWR) (which do not limit working time) provide for a minimum of 10 hours rest in any 24-hour period which can be divided into two periods, one at least six hours in length with the interval between consecutive rest periods not exceeding 14 hours; and 77 hours in any seven-day period (SHWR 5). The Maritime and Coastguard Agency may authorise a collective or workforce agreement permitting exceptions to these limits. Rest periods and breaks for those aged 18 and under are provided by the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Employment of Young Persons) Regulations 1998 (SI 1998 No. 2411).

The CAR civil aviation regulations call for notification of rest periods, which are provided “without prejudice” to annual leave entitlement. These amount to not less than seven days in each calendar month; and not less than 96 days in each calendar year.

The RTR road transport regulations follow the European drivers’ hours rules, applying identical daily rest requirements to other members of the travelling staff for any time spent in a vehicle “in scope”. They are required to take an uninterrupted 11 hours rest in the 24-hour period commencing at the end of the last daily or weekly rest period. This may be reduced to nine continuous hours no more than three times between any two weekly rest periods (no compensation required). Daily rest periods away from base may be taken in a vehicle provided that there are suitable sleeping facilities for each driver and the vehicle is stationary. Alternatively a 12-hour rest can be split into two periods, the first at least three hours, and the second at least nine hours. There are special rules covering multi-manning and accompanying a vehicle which is transported by ferry or train.

On a weekly basis, the European drivers’ hours rules require that within six 24-hour periods from the end of the last weekly rest period, a daily rest period will be extended into either: a regular weekly rest period of at least 45 hours, or a reduced weekly rest period of less than 45 hours, but at least 24 hours (any reductions must be compensated for). In any two consecutive weeks, there must be at least two regular weekly rest periods, or one regular weekly rest period and one reduced weekly rest period of at least 24 hours. However, the reduction should be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question.

GB drivers’ hours rules include daily rest of 10 hours between two consecutive working days which can be reduced to 8.5 hours up to three times a week; and in any two consecutive weeks at least one rest period of 24 hours off duty.

Good practice on the railways is for regular/fortnightly recovery periods of at least 48 hours. Under the doctors’ New Deal agreement minimum time off between duties is eight hours (on-call rota 12 hours), while minimum off duty time is 48-hours plus 62 hours every 28 days (every 21 days on-call rota).

Rest breaks

The main WTR regulations require employers to allow workers to take a break from work, in addition to the minimum daily and weekly rest periods. An adult worker whose daily working time is more than six hours is entitled to a break of not less than 20 minutes (WTR 12). The entitlement is for an uninterrupted break away from the workstation, if the worker has one. Young workers are entitled to a break of at least 30 minutes in four-and-a-half hours.

BERR guidance states that: “The break should be taken during the six-hour period and not at the beginning or end of it” but the exact timing is “up to the employer to decide”. Breaks can be deferred and compensated later where “the worker’s activities involve the need for continuity of service”, or where there is “a foreseeable surge of activity” (WTR 21). However, the Court of Appeal has held that — in the case of any exclusions on the grounds of a need for continuous activity — the focus is on the worker’s activities, not the employers’. Employers cannot, for example, under-staff to avoid giving workers the right to breaks (Alpha Catering Services v Gallagher [2005] IRLR 102).

As a result of a ruling by the European Court of Justice (ECJ) (following a challenge by Amicus, now part of general union Unite), BERR guidance no longer says that employers “are not required to make sure” that workers take their rest, and now simply says that employers “must make sure that workers can take their rest”. The previous wording implied that there was no legal requirement on the employer to make it happen.

Neither the regulations nor BERR guidance indicate whether, in a 12-hour working day, there is a right to a further rest break, and additional breaks therefore need to be negotiated. Rest breaks, including duration and the terms on which they are granted may be defined, modified or excluded by a collective or workforce agreement, as can the matter of whether or not they are paid.

Pattern of work rest breaks

The WTR regulations include a separate obligation on employers to ensure that a worker is given “adequate rest breaks” where the “pattern according to which an employer organises work” is such as to put the health and safety of the worker at risk (WTR 8). This may be required, in particular, “because the work is monotonous or the work-rate is pre-determined”.

Other break arrangements

The RTR road transport regulations have their own break provisions although the European drivers’ hours rules take precedence when driving:

• mobile workers must not work more than six (consecutive) hours without a break;

• if working time totals between six and nine hours, it should be interrupted by a break or breaks totalling at least 30 minutes;

• if working time exceeds nine hours, it should be interrupted by a break or breaks totalling at least 45 minutes; and

• breaks should be of at least 15 minutes duration.

Department for Transport (DfT) guidance adds: “In the interest of safety, and as a matter of good practice, it is strongly recommended that breaks should be distributed evenly throughout the day”. Whether paid or unpaid, breaks do not count towards any of the limits under the regulations. As working time is “interrupted” by breaks, a worker should “resume work” after a break, rather than taking it at the end of a shift. European drivers’ hours rules require that after four-and-a-half hours a driver must take a break of at least 45 minutes. This may be split into smaller periods and distributed throughout the four-and-a-half hours. In this case, the first period must be at least 15 minutes, and the second period must be at least 30 minutes.

DfT guidance says that there is nothing to prevent a mobile worker taking a break in the middle of a period of availability (PoA) as long as they meet all the appropriate requirements and that breaks are recorded separately for enforcement purposes. Drivers may not perform anything that might be regarded as “other work” although breaks may be taken at the workstation.

Under GB drivers’ hours rules, drivers of passenger vehicles (e.g. local bus services) can work for longer (five hours and 30 minutes) before becoming entitled to a 30-minute break. There are alternative limits providing for total break entitlement within the working day.

Under the civil aviationCAR regulations (CAR 7), rest break entitlement is not specified, However, employers intending to organise work according to a certain pattern must take into account the general principle of adapting work to the worker (where that is relevant to the objective of protecting workers’ health and safety) and should afford adequate rest breaks and alleviate monotony or working at a pre-determined rate.

In the case of seafarers, short breaks are included within the definition of working hours (P&O Ferries (Bermuda) v Spencer UKEAT/0433/04). In fishing, FVR provides for reasonable rest breaks where the pattern of work is monotonous or the work rate pre-determined. The IWRinland waterways regulations make similar provisions. Guidance from the Maritime and Coastguard Agency says that, while there is no statutory definition of a rest break, it would generally consider any rest of less than 30 minutes to be a rest break.

On the railways a negotiated right to “physical needs” breaks exists independently of the WTR regulations. Under the doctor’s New Deal agreement all patterns of work are entitled to a 30-minute break for each period of four hours worked.

Compensatory rest

Under the main WTR regulations, workers may be denied their right to rest periods and breaks under certain circumstances (special case exclusions, shift workers, and where changes have been made by collective or workforce agreement). But in this case they must receive compensatory rest (WTR 24):

• the employer must “wherever possible” allow him/her to take “an equivalent period of compensatory rest”; and

• in “exceptional cases” where this is not possible “for objective reasons” the employer should allow “such protection as may be appropriate in order to safeguard the worker’s health and safety”.

BERR guidance says that this rest “is normally a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed”. The regulations give all workers a right to 90 hours of rest in a week (the total of daily and weekly rest periods) and the compensatory rest exception allows workers to “take rest in a different pattern to that set out in the regulations”. The principle is that everyone gets his or her entitlement of 90 hours rest a week on average, although some rest may come slightly later than normal.

The guidance now acknowledges the ECJ ruling that compensatory rest should be provided immediately after the end of the working period (in the Jaeger judgement, “before commencing the following period of work” (Landeshauptstadt Kiel v Norbert Jaeger 2003)). Proposed amendments to the EWT directive would change this to “within a reasonable period” (see pages 3-4).