Breaks and working time

Exclusions to the right to rest breaks under the Working Time Regulations 1998 on the grounds of a need for continuous activity must focus on the activities of the worker, not those of the employer.

The facts

The case concerns the right to rest breaks for catering workers in the civil aviation industry. Twenty-eight workers alleged that their employer, Alpha Catering Services, failed to allow them the right to daily breaks as provided by the Working Time Regulations.

The issue hung on the meaning of Regulation 21, which says that breaks can be deferred and compensated later where "the worker's activities involve the need for continuity of service", or where there is "a foreseeable surge of activity".

The ruling

The EAT held that the need for continuity of service focuses on the worker's activities and not the employer's. Otherwise, it could allow employers to remain deliberately understaffed in order to deprive their workers of breaks.

On the second point, the EAT held that for there to be a "surge" in work it must be something more extreme than a natural fluctuation in activity, which workers in most industries experience.

The EAT also confirmed that "downtime", when workers were waiting for further instructions, was classed as working time and could not constitute a rest break.

Gallagher and others v Alpha Catering Services EAT/0048/04