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Exclusions from the WTR
[ch 9: pages 166-167]Some groups, such as the armed forces, are completely excluded from the WTR. There are also “special case” exclusions that apply to workers in a range of activities, such as drivers, guards and platform staff on the railways. These workers are still entitled to the 48-hour average working week, 5.6 weeks’ paid leave and night-worker health checks, but are excluded from night worker limits, rest breaks and rest periods. The right for doctors in training to work a 48-hour week was phased in over a number of years and came fully into effect in August 2009.
The other “special case” exclusions cover:
• workers whose activities are such that their place of work and place of residence are distant from one another;
• those engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, such as security guards and caretakers;
• activities involving “the need for continuity of service or production”; and
• situations where there is an unforeseeable surge in activity, for example, activities that are affected by unusual or unforeseeable circumstances “beyond the control of the worker’s employer”; exceptional events which “could not be avoided”; or accident or imminent risk of accident.
The ECJ has ruled that emergency workers are covered by the Working Time Directive. The case concerned Red Cross rescue workers dealing with “unforeseen” events. The ECJ held that emergency workers are not dealing with events that are unforeseeable, so they are covered by the directive (Pfeiffer v Deutsches Rotes Kreuz [2005] IRLR 137).
Security activities are among the “special case” exclusions. However, an employment tribunal has ruled that all security guards are entitled to rest breaks. Although the security industry is not subject to the law requiring that workers have a 20-minute rest break every six hours, it must do “the next best thing”, such as allow a number of shorter rest periods or one longer period.
Gavin Ruddick, a security guard, brought a case supported by the general union GMB. He had complained to his managers at security firm Reliance that there was no official policy in place to allow him rest breaks to go to the toilet. His employer’s response had been that he would be blamed for any loss if property were damaged while he was away from his post. Ruddick was later moved from his city centre office to a car park Portacabin, for which he received less pay. The tribunal concluded that the company had impaired Ruddick’s convenience and quality of life. It also ruled that he had been moved in an attempt to “shut him up”.
Ruddick v Reliance Security Services, Newcastle Employment Tribunal, June 2003, unreported
More recently, a railway signalman who could not take a 20-minute rest break brought a case against Network Rail after it instructed him to fit in shorter breaks between trains. The EAT said compensatory rest should, as far as possible, be a single, uninterrupted break of 20 minutes (Crawford v Network Rail Infrastructure Ltd [2017] UKEAT 0316_16_0811).
In May 2018, the High Court ruled in favour of the fire brigades FBU union and declared a duty system requiring firefighters to work 96-hour shifts as unlawful. The case centred on a duty system operated by South Yorkshire Fire and Rescue Service known as close proximity crewing (CPC), but the FBU says the judgement could affect dozens of fire and rescue services that operate similar shift systems. The legal battle began in October 2015 when a group of South Yorkshire firefighters argued that the duty system was unlawful at an employment tribunal. The tribunal ruled in their favour but the employer continued to operate the duty system. The union then sought a judicial review.
R (Fire Brigades Union) v S. Yorks Fire and Rescue Authority [2018] EWHC 1229