The Working Time Regulations 1998 (WTR) contain a number of provisions regarding rest breaks, one being that in any 24 hour period an employee is entitled to at least 11 hours consecutive rest from work. What happens if the employee is in work between shifts, in a different capacity, resulting in there being less than 11 hours break?
This issue arose in Edwards and Anor v Encirc Ltd. As well as being employees, one of the Claimants was also a health and safety representative and the other a union shop steward. Both of them attended meetings in their alternative capacities outside of their normal working hours, resulting in them having only 6 hours rest before the start of their next shift.
In order to establish whether there had been a breach of the WTR it was necessary to consider whether attending meetings in the capacity of health and safety representative and union shop steward rather than carrying out their normal duties amounted to “working time”, thereby interrupting the 11 hour break. The original Tribunal decided that it did not and, therefore, there was no breach of the WTR. The Tribunal took the view that as the Claimants attended work to represent their colleagues they were beyond the control and direction of their employer. The Tribunal also stated that since they were not carrying out their employee duties, they were not working for WTR purposes.
On appeal to the Employment Appeal Tribunal (EAT), it was decided that the Tribunal had taken too restrictive an interpretation of the WTR. The WTRs stem from European legislation, which allows for a broader interpretation to be taken regarding what “under the employer’s control and direction” may mean. The EAT found that it was not essential for the employee to be carrying out their contractual duties and that working time could include activities which arise from the employment relationship and are for the benefit of the employer.
If you have employees who hold other positions, such as a health and safety representative or union shop steward, any work that they do in that capacity could be considered to be working time. If that work is conducted outside of normal working hours, this could interrupt what should be an uninterrupted period of rest and provision for this should therefore be put in place in order to avoid any breaches of the WTR occurring.
