The People Bulletin
Rest breaks not the same as ‘on call’ and not payable, says appeal court
08 December 2010
Claire Martin was a nurse employed by the Southern Health and Social Care Trust in Northern Ireland. Her terms and conditions of employment were set out in ‘NHS Terms and Conditions Handbook’ in which the rules about rest breaks were set out in Figure 1.
Figure 1: Extract of staff handbook
Part III: Terms and conditions of service
Section 10; Hours of the working week
10.1 The standard hours of full-time NHS staff covered by Agenda for Change will be 37½ hours excluding meal breaks … Working time will be calculated exclusive of meal breaks except where individuals are required to work during meals in which case such time shall be counted as working time.
On-call staff
27.13 Staff who are on-call, i.e. available for work if called upon, will be regarded as working from the time they are required to undertake any work-related activity. Where staff are on-call but otherwise free to use the time as their own, this will not count towards working time.
Rest breaks
27.15 Where the working day is longer than six hours, all staff are entitled to take a break of at least 20 minutes. Rest breaks must be taken during the period of work and should not be taken either at the start or the end of a period of working time. Employees should be able to take this rest break away from their work station. In exceptional circumstances and by agreement with the worker, where a rest break cannot be taken the unused entitlement should be claimed as a period of equivalent compensatory rest. Line managers should ensure that provision is made to allow compensatory rest to be taken. Existing local arrangements which already provide for breaks of more than 20 minutes (e.g. lunch breaks) will meet the requirements of this provision and no further action will be needed."
Claire Martin’s shift pattern required her to work a night shift during which she was entitled to two unpaid rest breaks, which she took within the hospital premises. Ms Martin's rest breaks were often interrupted to deal with a range of incidents, from significant medical emergencies to mundane practical and administrative matters. The hospital trust ensured that interruptions were logged and that she received compensatory time off.
When her request for cover to be guaranteed so that she could take uninterrupted breaks during specific shifts was refused, Ms Martin claimed that she should be paid for all of her rest breaks because there could be no guarantee that she would not be disturbed. She maintained the breaks amounted to ‘on-call time’ and were therefore working time for which wages should be paid.
The Northern Ireland Court of Appeal did not agree and held that the risk of interruption of rest breaks did not mean that they could be equated to ‘on-call time’. The requirement for healthcare staff to provide continuous service in exceptional circumstances was conceptually different to ‘on-call time’, during which the employee remains at the disposal of the employer. It also held that she was not entitled to be paid for the rest breaks because compensatory rest was provided and these arrangements has been collectively agreed at a national level to make sure the Regulations were implemented correctly.
Law firm Shepherd + Wedderburn identified the following impact on UK employers outside Northern Ireland:
- Although this decision of the NICA is not binding on employment tribunals in Scotland, England and Wales, it will still be relevant if similar issues arise under the Working Time Regulations 1998.
- There is a distinction to be made between rest breaks during the working day and rest periods between working days. The directive and regulations permit some flexibility in relation to the entitlement to short, twenty-minute rest breaks, which often cannot be taken away from the workplace.
- The key factor in this case was that the arrangements put in place by the Trust for ensuring compensatory rest satisfied the terms of the directive, the regulations and the trust's own terms and conditions of employment. The case highlights, in similar circumstances, the importance of logging interruptions to rest breaks and ensuring that employees receive compensatory time off in lieu of any interruptions.
Martin (claimant) v Southern Health and Social Care trust (respondent) [2010] NICA 31, 10 September 2010