UK: Take a Break

Last Updated: 27 July 2004
Article by Amanda McGurran

Many of you will be involved in businesses that use shift patterns. If so, the recent European Court of Justice case of Landeshauptstadt Kiel v Norbert Jaeger (2003) will be of interest to you. The decision was widely reported in the employment law press when it was handed down in September 2003.

The case focused on whether the time spent asleep on call by doctors working at a hospital was "working time" within the Working Time Directive. The Working Time Directive was implemented in the UK by the Working Time Regulations 1998 ("WTR). This part of the decision attracted the majority of publicity, but the case also involved another working time issue which has not attracted nearly as much publicity as it deserves, that of "compensatory rest". While this aspect of the decision has largely been overlooked, it is of no less importance to those of you who employ workers on shift patterns, than other working time issues.

The Impact of Jaeger

Under the WTR, workers are entitled to a daily rest period of at least 11 hours in every 24 (Regulation 10 (1)). Regulation 11 (1) gives workers the right to an uninterrupted weekly rest period of at least 24 hours in every 7-day period. If this is not possible, you can give workers 2 uninterrupted rest periods of at least 24 hours, or have one uninterrupted rest period of 48 hours, in each 14-day period (Regulation 11 (2)).

Under Regulation 22, these minimum rest periods do not apply to shift workers if they are unable to take the relevant rest period between the end of one shift and the start of the next, for example because of business needs. If this is the case, the workers are entitled to equivalent compensatory rest to make up for the rest period they missed.

As well as daily and weekly rest periods, your workers are entitled to a daily break of at least 20 minutes if they work for a minimum uninterrupted period of 6 hours. Again, if your worker cannot take this daily break during a shift, he must be given equivalent compensatory rest.

Some shift patterns mean that the workers cannot take their minimum daily and weekly rest periods when they fall due. With long shifts, workers may not be able to take the necessary rest periods between the end of one shift and the start of the next.

DTI guidance on working time states that workers are entitled to a total of 90 hours’ rest per week (adding up daily and weekly rest periods). The shift workers exception under Regulation 22 (see above) allows you to use a different rest pattern to the WTR, provided all workers get an average of 90 hours’ rest a week. This suggests that you can provide compensatory rest at a later date to when it falls due, provided the worker’s health and safety is protected.

The Jaeger decision appears to contradict this guidance, as it indicates that equivalent compensatory rest must follow on immediately from the working period when the relevant rest period was not taken. In practice, this could have a disastrous effect on your business and mean that you have to rethink your shift patterns – the decision means that you cannot require the worker to start the next shift until he has had compensatory rest for the previous one. However, all is not lost. If your shift pattern is an "exceptional case", you should be able to work around this.

Regulation 24 (b) allows you to give the worker appropriate protection to safeguard their health or safety where, in exceptional cases only, it is not possible for objective reasons to grant compensatory rest. It is not clear what constitutes an exceptional case, or indeed what the objective reasons are. There may be circumstances where you can argue that a shift pattern which means that workers cannot take compensatory rest before the start of the next working period, amounts to an exceptional case. This will very much depend on the facts in each situation.

It looks like exceptional cases will be construed narrowly by the Courts, so take care not to apply Regulation 24 (b) without proper consideration to the facts and the health and safety needs of the workers involved. There is no doubt that the decision in Jaeger on compensatory rest will have ramifications for your business unless you fall within an exceptional case. Watch this space, as we doubt this is the last we will hear from Jaeger.

Tips for Protecting Workers

If you do need to use shift patterns which do not allow workers sufficient opportunity to take compensatory rest when it falls due, we would suggest the following ways of protecting their health and safety:

  • Ensure that your workers still receive their 20-minute daily breaks.
  • Consider whether you can rotate workers’ tasks to reduce monotony and tiredness.
  • Give your night workers regular health checks (as the WTR require you to do in any event).
  • Review your working patterns to see where you should be giving compensatory rest.
  • Consider recruiting additional staff so that shifts can be distributed between more workers.
  • Where possible, provide any compensatory rest before the start of the next working period.
  • Keep the use of exceptional cases, where objective reasons mean you cannot give compensatory rest, to an absolute minimum.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.