At last we have some clarification on the question of what breaks a lone security guard is entitled to takewrites employment lawyer and Infologue.com legal columnist, Paul Housego of Beers LLP who specialise in employment law in the outsourced services sector.
“The security industry is exempted from the strict requirements of the Working Time Regulations, provided there is compensatory rest given. It has never been clear exactly what this meant.The Employment Appeal Tribunal (EAT) in Hughes -v- Corps of Commissionaires Management Ltd [(no 2) 2011 IRLR 100] has now given some clear advice, and it is good news all round. Mr Hughes was one of three guards on a 168 contract. They worked 12 hour shifts – one on the day shift, one on the night shift and one on a day off, every day. They were on duty all 12 hours but, at a time to suit them, could put up a sign saying they were on a break, and take a break. The sign they had to display had a contact number, so that the break could be interrupted at any time. If it was interrupted, then it didn’t count as a break.
“Mr Hughes argued that it wasn’t a proper break as he couldn’t leave the premises, as well as being unable to be certain of the break at its commencement.The decision is simple common sense. As security guards are not entitled to rest breaks like other workers, but are entitled to compensatory rest, then it must be that the compensatory rest is not the same as the working time regulation break. The case also is support for the view that as the compensatory rest entitlement is “whenever possible” then it must also be the case that if there are occasions when it is not possible for the guard to take a break and that will be acceptable, provided not routine.
“Mr Hughes said he should be paid an extra amount equivalent to the time he should have had on the breaks he said he hadn’t had. The EAT correctly said that he couldn’t sell his break time, so that even if he hadn’t had a break he would not get more money. The right is to time without work, not to money. So if on occasion it is not possible for there to be compensatory rest, there is no obligation to pay more wages for the missed break.Of course, there does have to be consideration as to what compensatory rest is possible, and if it is possible, it must be given. What the case does not decide is what happens if the security role is one where it simply is not possible for there to be any break, but it seems likely that the Courts will not be impressed with companies that cannot think of a way of organising this. But there is great flexibility in how it is to be done, and this is very welcome clarification.
“Any reader who would like a more lawyerly exposition than this can obtain it without charge by contacting me.”