Shift work is the norm within the Care sector and when
people think about the Working Time Regulations they rarely see
rest periods as much of an issue. But – a recent case
involving Linkage Community Trust Limited is about to change
all that.
Linkage Community Trust Limited provides specialist education
in care homes. Mr Miles was employed by Linkage on a shift
system which required him to be at work for long periods,
sometimes (including sleep-in time) of nearly 48 hours.
He did not always have a daily break of at least 11 hours. He
brought a claim for breach of the WTR. He argued that all his
sleep-in time constituted working time and that Linkage was in
breach of the WTR by not allowing him 11 hours rest after
working a shift and only allowing compensatory rest at the end
of his very long (nearly 48 hours) shift.
Linkage conceded that the sleep-in time constituted working
time. It argued, successfully, that the right to 11 hours rest
did not apply because of the requirement for continuity of
service - but accepted that it was in breach of the provisions
as to compensatory rest.
Judgment
The Employment Tribunal held that Mr Miles was not entitled
to any compensation. He had no financial loss arising from the
breach. There is no scope in the WTR to award injury to
feelings. There was no culpable default on the part of Linkage.
Mr Miles appealed to the EAT. The EAT upheld the decision of
the Tribunal.
Practical Implications
Employers in the Care sector must be aware that if a worker
is unhappy about rest periods they can complain to the
Employment Tribunal. Compensation can be awarded but the
purpose is to make reparation to the worker not to penalise the
employer.
The Tribunal will consider whether there is any financial loss
and the extent of any default by the employer. There will
rarely be any financial loss to the worker and the amount of
compensation, if any, will be determined by the duration and
extent of the employer's default including whether the
employer was acting in good faith.
The worker will need to try to exercise their right (which
will probably be in the form of a complaint or grievance) to
take a rest period and be refused by the employer before they
can bring a claim at the Tribunal.
If, therefore, there is a problem and a worker complains that
they have been denied the right to adequate rest, the employer
will have an opportunity to address the issue. Only if
employers fail to do so, will there be a risk of a significant
financial penalty.
While no compensation was awarded in the Linkage case,
compensation could be awarded if the employer is seen to be at
fault.
There are practical steps that employers need to take to avoid
liability. Review shift patterns to ensure that adequate rest
is provided. Within the Care sector worker's activities
involve the need for continuity of service so the right to rest
periods might not apply - but they are entitled to equivalent
period of compensatory rest' wherever possible.
For example; if the care worker is expected to work during the
11 hours rest period the employer should allow the worker to
take equivalent compensatory rest no later than the end of that
11 hours period (in fact, no more than 24 hours in total after
the start of a period of working time) – unless there
are exceptional circumstances, such as a replacement worker
calling in sick.
Guidelines for WTR
The parts of the WTR that employers tend to worry about most
are:
- 48 hour limit on average weekly working hours.
- 8 hour limit on average daily working hours for night workers.
- Night workers' yearly health assessments.
- 4.8 weeks' paid holiday a year (rising to 5.6
weeks on 1 April 2009).
The rules on rest periods
Employers must allow workers the following rest periods:
- 11 hours uninterrupted rest per day;
- 24 hours uninterrupted rest per week (or 48 hours rest per fortnight); and
- A rest break of 20 minutes when working more than six
hours per day.
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.