There can be few more safety critical roles on the railway than that of signaller (the new inclusive term for signalman). The role demands a considerable degree of concentration and responsibility and it goes without saying that sufficient breaks are necessary to maintain alertness. The issue came to the attention of the media when a signalman was dismissed after 44 years service when he (according to the newspaper reports) took a 20 minute break after working non-stop for six hours. Managers are reported as not having agreed to the break for reasons which are not entirely clear from the press coverage. Network Rail said that he started the lengthy process of shutting down the signalbox at a peak time on a week day; although the signalman is reported as having given managers 4 days notice and had found someone to cover for him.
This example called into question the application of the Working Time Regulations (1998) to the rail sector. On the face of it they appear to afford everyone an entitlement to a 20 minute break after working for 6 hours – although there are exceptions. The law in this area has now been tested by a claim brought by another signaller in the employment courts which ultimately fell to be determined by the Court of Appeal – Crawford v Network Rail Infrastructure Ltd [2019] EWCA Civ 269, [2019] ICR 1206 . As ever with the law the issue turns out to be more complicated than it first appears!
The signalman (a term which we can in fact use here because the claimant is a man and this is used in the case report) in this case worked in boxes which were designed for single person operation on eight hour shifts. There were no scheduled breaks but he was expected to take breaks as and when he could when there were naturally occurring breaks in proceedings. However, it was never possible to take an uninterrupted break of 20 minutes on this basis which is the usual statutory minimum under reg 12 of the Working Time Regulations. The Employment Appeal Tribunal (EAT) noted that the nature of his work brought into play an exemption under reg 21(f) which dis-applies the reg 12 statutory minimum break in respect of rail and transport workers who play crucial roles in ensuring the unimpeded flow of traffic. Nevertheless, reg 24(a) stipulates that alternative arrangements must be made in respect of such workers – known as ‘compensatory rest’. The Tribunal found that the alternative arrangements made by Network Rail were fully compliant with reg 24(a) but then ran into a quandary because of a decision of the Employment Appeal Tribunal – Hughes v Corps of Commissioners Management Ltd [2011] IRLR 100 which it interpreted as meaning that the compensatory rest provided under reg 24(a) must still amount to a 20 minute uninterrupted break insofar as this is possible (the case concerned a similar exemption relating to those engaged in security work). Thus, it went on to consider how such a 20 minute break could be accommodated and suggested that the employer could arrange someone to cover such breaks.
On appeal to the Court of Appeal it was held that such an interpretation of the law would make a nonsense of the concept of ‘compensatory rest’- perhaps a classic example of the mischief rule of statutory interpretation! If this had to amount to 20 minutes uninterrupted rest the provision would be redundant in that it would be no different to the reg 12 requirement which it purports to dis-apply. On this point Underhill LJ held as follows at [44]:-
Whether the rest afforded in any given case is “equivalent”, in the sense explained by Lady Smith, must be a matter for the informed judgment of the (specialist) employment tribunal. There is no basis in principle for the proposition that only an uninterrupted break of 20 minutes can afford an equivalent benefit in that sense; and the provision for a collective or workforce agreement to make some different arrangement would be meaningless if that were so. I can see no reason why a single uninterrupted break of 20 minutes will always be better than, say, two uninterrupted breaks of 15 minutes one-third and two-thirds through the shift. The evidence referred to at para 28 above provides other illustrations of how different kinds of rest may be thought appropriate in particular cases.
Moreover, the Court did not construe Hughes as ruling out alternatives to a 20 minute uninterrupted break and considered that the cumulative effect of shorter breaks amounted to an equivalent rest period:-
But in any event the court does not say in terms that the 20-minute minimum period to which it refers should be uninterrupted: it simply says that the work-free period should be at least 20 minutes. I accept that in some contexts it might be natural to read that as referring to a continuous period, but there is no context here to require such a reading: there was no issue on the facts of Hughes about whether the 20 minutes which he was allowed needed to be uninterrupted, since if the period was in fact interrupted he was allowed another. (Underhill LJ) [45].
Whether the Court of Appeal decision will put the issue to rest remains to be seen. As can be seen from some of the press coverage much strong feeling was aroused and plenty of sympathy was shown for the signalman who appeared to take matters into his own hands in the earlier case. The RMT union, which supported the action, has not commented publicly on the outcome of the Court of Appeal proceedings (although it covered the EAT decision) and there appears to have been no suggestion of taking the matter all the way to the Supreme Court. However, one can surmise that negotiations may be afoot behind the scenes given that the Working Time Directive expressly authorises employers and unions to reach their own agreements within the framework of the Directive: see reg 23.