Compensatory rest


Where workers lose out on their rest periods, for example, because they are moving between shifts, their rest break is excluded as a “special case”, or their rest breaks have been modified due to collective or workforce agreements, they must be given an equivalent period of compensatory rest. Government guidance suggests that this should be taken “reasonably soon after the time you missed”. In exceptional cases where this is not possible, the employer must give the worker appropriate protection to safeguard health and safety. At European level, unions continue to campaign for tighter regulation of compensatory rest, with clearer rules to prevent any delay in being allowed to take the rest.


In Alpha Catering Services v Gallagher [2005] IRLR 102, the Court of Appeal held that the focus, in relation to the rules on compensatory rest, should be on the activities of the worker, not of the employer. Employers cannot, for example, under-staff to avoid giving workers the right to breaks.


In the case of seafarers, where there are separate regulations, short breaks are included within the definition of working hours (P&O Ferries (Bermuda) v Spencer UKEAT/0433/04).


In an important case, the Employment Appeal Tribunal (EAT) has ruled that a health and safety rep and shop steward at Cheshire-based glass container manufacturers Encirc were “at work” for the purposes of the Working Time Regulations when they were attending health and safety and trade union meetings during the working day with the agreement of the employer. The case, Edwards & Anor v Encirc Ltd [2015] UKEAT 0367/14/2302, involved two general Unite union reps. The meetings took place late in the afternoon, meaning they only had six and nine hours respectively between the end of the meetings and the beginning of their night shifts. They argued that under Regulation 10(1) of the Working Time Regulations 1998, they should have been given 11 hours’ rest between carrying out their functions as union reps, i.e. attending the meetings, and beginning their shifts. The EAT said that attending these trade union or health and safety meetings during the working day with the agreement of the employer was for the employer’s benefit and the two reps were working. It was working time.