High Court gives guidance on 'Compensatory Rest Periods'

High Court gives guidance on 'Compensatory Rest Periods' under Working Time legislation

The High Court has provided guidance on what constitutes a compensatory rest period for the purposes of the Organisation of Working Time Act 1997 and the Organisation of Working Time (General Exemptions) Regulations 1998.

The 1997 Act regulates certain aspects of the organisation of working time and, in the context of rest breaks for employees while at work, prohibits employers from requiring employees to work for a period of more than four and a half hours without allowing them a break of at least 15 minutes. Employers are also prohibited from requiring employees to work for periods of more than six hours without allowing them a break of at least 30 minutes (which may include the 15 minute break).

Certain activities are exempt from the obligation to provide these prescribed rest breaks. These include activities of a security or surveillance nature, the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and in particular, the activities of a security guard, caretaker, or security firm. Where activities are exempt from the obligation to provide the prescribed rest breaks, the employer is obliged to make 'such arrangements as respects the employee's conditions of employment as will compensate the employee'. The compensatory arrangements that are put in place cannot be monetary or of any material benefit to the employee.

In a recent High Court decision, Stasaitis v Noonan Service Group Ltd & Anor, Kearns P analysed what these 'compensatory arrangements' could be. In this case, a security employee who was engaged in an activity which exempted the employer from the statutory requirement to provide the prescribed rest breaks, claimed that he had not been provided with compensatory rest periods in circumstances where he was required to remain in a security hut for the duration of his 8 hour shift, without any scheduled rest breaks. The employee was permitted to take as many breaks as he wanted during periods of inactivity and it was accepted that there were periods of inactivity during his shift. He was provided with amenities, kitchen facilities, and an area in the security hut in which he could take such breaks. He was not allowed to leave the hut during his shift. It was accepted that he availed of these arrangements for breaks.

Kearns P, finding in favour of the employer, found that an employer's obligation to make compensatory arrangements may be met where the employee "is provided with better physical conditions or amenities or services whilst at work". Kearns P referred to the fact that in this instance, the employee was provided with kitchen facilities and an area within which to take breaks during periods of inactivity, and was permitted to take such breaks as he wanted during periods of inactivity and was provided with amenities and facilities to do so. Kearns P held that in these circumstances the requirement to provide compensatory rest periods must be deemed to have been complied with. Kearns P did not accept the argument made by the employee that he had not received compensatory rest periods as his employer had not specified breaks of fixed duration during his shift, and described this argument as a 'paradox' as, from the facts, it was clear that breaks of a specified duration could have the effect of significantly reducing the employee's periods of actual rest.

This decision illustrates that an employer's obligation to provide compensatory rest periods may be satisfied by the provision of better physical conditions or amenities or services which the employee may avail of during periods of inactivity at work, and that the failure by an employer to specify breaks of fixed duration does not mean that such an arrangement cannot constitute compensatory rest for the purposes of the Regulations. Employers should note that the question of whether compensatory rest periods have been provided will depend on the specific facts and should therefore consider taking professional advice before proceeding to rely on this decision.

For further information please contact Michael Kennedy, Elaine Kelly or Donal Hamilton.