UK: Take a Break

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.

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.

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.