Working hours

An award made under pendulum arbitration operates as if it was a collectively agreed term, and therefore falls within the exceptions set out in the working time regulations.

The facts

Following a dispute between the Prison Service and the union, it was agreed that a proposal for a new shift system, which the service wanted to introduce and which the union opposed, should be referred to independent arbitration. The arbiter duly made an award in favour of the employer.

Workers complained that the new shifts contravened the working time regulations, and that the only way the regulations could be avoided was where there had been a workplace agreement.

The ruling

The EAT held that the arbiter's award operated as if it had been the result of negotiations between the employer and the union. It therefore was no different from a workplace agreement under the regulations.

The collective agreement provided for the mechanism for arbitration, so that any decision by the arbiter constituted an agreement made between the parties.

HM Prison Service v Bewley EAT/0595/03