Veitch Penny LLP - Exeter | Crediton, Devon

Case

Gallagher & Others v Alpha Catering Services Ltd
Court of Appeal - (8 November 2004)

Issues

(1) Continuity of Service
(2) Working Time Regulations 1998
(3) Rest Breaks

Facts

Alpha Catering Services Limited were a company in the airline catering business. The employees were delivery staff employed to load and deliver meals and drinks on to the aircraft and to remove the used items at Gatwick Airport. During the course of the employees’ working day there were periods which were very busy and other periods where they had no immediate duties to perform. These periods were described as “down time” where employees were required to remain in radio contact with the employer, either in or close by their delivery vehicles. They were treated as being at the employers disposal.

The delivery staff complained to the Employment Tribunal claiming that Alpha had unlawfully denied them rest breaks to which they were entitled under Regulation 12(1) of the Working Time Regulations 1998. Regulation 12(1) of the Working Time Regulations 1998 provides “where [a worker’s] daily working time is more than 6 hours, he is entitled to a rest break”.
Alpha argued that Regulation 21(c) applied, as the work required continuity of service, and stated that in any event the down time constituted a rest break. Regulation 21 of the Working Time Regulations 1998 provides, so far as relates to this case “other special cases … Regulation 12(1) (does) not apply in relation to a worker … (c) where the workers’ activities involve the need for continuity of service or production as may be the case in relation to … (ii) work at docks or airports …”.

The Tribunal dismissed their application for want of jurisdiction after finding that the employees were deprived of the protection of Regulation 12(1) by Regulation 21(c) on the ground that their activities involved a need for continuity of service.

The employees appealed against the decision. The Employment Appeal Tribunal (EAT) finding that the Tribunal had been incorrect in its assessment of the employees continuity of service and found that Regulation 21(c) could not deny them protection.

The employer appealed that decision to the Court of Appeal.

Decision

The Court of Appeal dismissed their appeal.

It held that the proper construction of Regulation 21(c) meant that the test of continuity of employment focused on the activity of the worker rather than the employer.

It accepted that whilst Alpha had required continuity of service in that the employees were at its disposal, the employees activities did not reflect continuity of service. The regulation only excluded the workers’ right to rest breaks where the worker is involved in activities requiring continuity, rather than the employer. There was no explanation from the Tribunal why the employees could not have rest breaks within the “down time” part of their working day.

Comments

This case provides more useful guidance on the application of Working Time Regulations, (although permission has been given to appeal).


Rachel Bickle – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it