Under section 12 (1) of the Working Time Regulations 1998, workers are entitled to a rest break of at least 20 minutes every six hours.

This does not apply, however, to workers whose activities "involve the need for continuity of service or production" (regulation 21(c)) such as those who work at docks or airports; or where "there is a foreseeable surge of activity" in the work (regulation 21 (d)).

In Gallagher and ors v Alpha Catering Services Ltd t/a Alpha Flight Services, the Court of Appeal overturned a tribunal decision that airline catering workers were excluded from the right to such breaks.

What were the facts in this case?

Mr Gallagher and his colleagues worked in the Service Delivery Department for Alpha, transporting food to and from the airport. There were often intervals when they got to the airport but could not work straight away. During downtime (as it was known), drivers and loaders were not permitted to sleep and were at their employer's disposal.

There were also times when the work was very intense.

These fluctuations in work activity arose for a number of reasons - because of something unforeseeable such as fog, or because of the time of day (mornings were busier than afternoons, for example). Overall, the company's business was extremely time-critical.

The employees complained that although they were entitled to rest breaks the company had refused to provide them, contrary to the regulations. Mr Gallagher itemised seven specific occasions when Alpha required him to work for more than six hours without a rest break.

Alpha responded by arguing that the claimants had no right under the regulations to take breaks and, in any event, they did have breaks during their downtime. It provided statistics showing that the days to which Mr Gallagher referred were days on which he had substantial amounts of downtime. 

What did the tribunals decide?

The employment tribunal decided that the employees were exempted from the protection of the regulations because the employer's activities involved the need for "continuity of service or production". However, it said that the routine fluctuations of activity were not "surges of activity" within the meaning of the regulations. Nor did the periods of downtime qualify as rest breaks.

The EAT allowed the employees' appeal, saying that the regulations only exclude a worker's right to rest breaks if his or her activities are the ones that involve the need for continuity of service, rather than the employer's.

What did the Court of Appeal decide?

Continuity of service/activities of workers or employer: The Court of Appeal agreed with the appeal tribunal that the activities of the worker must require continuity of service, and not those of the employer. It rejected the employer's argument that because other sections of the regulations refer to industries (such as agriculture), that the reference to the "dock or airport workers" should also be interpreted as a reference to their business.

Meaning of foreseeable surges: The Court said the tribunal had, however, been right that a "foreseeable surge" was something that involved an exceptional level of activity at work. This was beyond any normal fluctuations or variations in work that were experienced within the normal working day or week. As the evidence had not disclosed any such surge, the employer could not rely on this exception to the regulations.

Downtime: It also said that the tribunal was right to decide that an employee who is on call and may be summoned at any moment is not enjoying a rest break. Downtime could not therefore constitute a rest break for the purposes of the regulations. It stated that: "a rest break is an uninterrupted period of at least 20 minutes which is neither a rest period nor working time and which the worker can use as he pleases."