Your right to a refreshment break
Your right to a refreshment break is contained within Police Regulation 22 Annex E. This states that where an officer is on duty for a continuous period of 5 hours or more, they are entitled to a refreshment break, as far as exigencies of duty permit.
Exigencies of service are a pressing need or requirement which cannot be reasonably avoided. However, this does not mean that refreshment breaks can be abused or ignored.
Police Officers are paid for their refreshment break as they are required to remain available to return to duty. Regulations offer little protection when refreshment breaks are not taken or interrupted so we must rely on other legislation to assist, such as Working Time Regulations, as shown below.
Breaches of the Working Time Regulations can be dealt with by an Employment Tribunal or complaint to the Health and Safety Executive who can issue the Force with an improvement notice, or even prosecute the Force if the situation is not improved.
WORKING TIME REGULATIONS
REST BREAKS AT WORK (Regulation 12)
This Regulation provides that where an adult worker’s daily working time is more than 6 hours, he/she is entitled to an uninterrupted rest break of not less than 20 minutes, and is entitled to spend it away from his/her work station (if there is one). Albeit subject to the exigencies of duty, the position under the Police Regulations 2003, in Annex E, which provides for a minimum 30 minute break on a sliding scale, is more favourable than this Working Time Regulation and, in most circumstances, should therefore prevail.
Under the local workforce agreement it was agreed that should a daily rest break be interrupted for any reason, the remainder of the time owed will be taken during that day.
Refreshment breaks; when should they be taken and how can a failure on the part of management to allow them to be challenged?
By reason of Regulation 12(1): “Where an adult worker’s daily working time is more than 6 hours, he is entitled to a rest break”.
There is provision that this rest break should be an uninterrupted period of not less than 20 minutes and be away from the worker’s “workstation” if he has one (Regulation 2(3)).
Importantly Regulation 12(2) provides: “The details of the rest break to which an adult worker is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement”.
We are advised that the Working Time Regulations right to a rest break for our members is likely to be 20 minutes. The question has been raised as to when the rest break should be taken. Whereas the Regulations are silent on this, we are advised it is to be anticipated that it should be taken in circumstances where the member works no more than 6 hours without enjoying a rest break. If, therefore, there is a rostered tour of duty of 8 hours, then it will be inappropriate for the WTR rest break of 20 minutes to occur earlier than after 1 hour 40 minutes of the tour (though, of course, members remain entitled, subject to the exigencies of duty, to 45 minutes rest break). If the rest break is, for instance, taken at the beginning of the 8th hour of the tour then the member will have been required to work 7 hours without a rest break and we advise that this is likely to be viewed as contrary to the spirit (if not the letter) of the Working Time Regulations.
It has been reported that in some Forces there are regular breaches of the provisions of Regulation 12 of the Working Time Regulations. The question was raised as to how this entitlement can be enforced.
A member may present a complaint to an Employment Tribunal that the Chief Officer has refused to permit him to exercise any right he has under Regulation 12 (a rest break provision). Such a complaint must be filed within 3 months less one day of the date it is alleged the exercise of the right should have been permitted. This is not a complaint that there is a breach of Regulation 12 but rather a complaint that there has been a refusal on the part of the employer “to permit” the member to exercise that right.
We are therefore advised that where there are concerns that these rights are being breached, members should notify in writing their supervising officer that they wish to insist on their entitlement to a rest break in accordance with the terms of the Working Time Regulations and seek their proposals to ensure that these provisions can be complied with. There is of course scope for the entitlement to be disapplied either by way of agreement between the Joint Branch Board and the Chief Officer (or by reference to one of the special cases under Regulation 21) but in both instances, there is a requirement for compensatory rest (or protection as may be appropriate in order to safeguard the worker’s health and safety).
An example of a successful complaint of a breach of regulation 12 is the decision of the Employment Tribunal in Roberts v Chief Constable of North Wales,
While tribunal decisions are not binding on other tribunals and cases will be affected by their own facts, the following points are worthy of note:
1. The Tribunal accepted that the canteen within the custody suite was away from the Claimant’s work station;
2. the Tribunal attached significance to the fact that while it might have been possible retrospectively to identify periods in excess of 20 minutes during which the Claimant might have taken a break, this could not be done in advance;
3. The Tribunal applied the European cases on all call and concluded that the whole of the shift was working time;
4. The Tribunal rejected an argument that Regulation 18 might apply. It found there to be no “inevitable conflict”
5. The Tribunal found that Regulation 21 did apply but that the Force was still in breach because of the failure to provide compensatory rest.
It should however be noted that the Roberts decision was before the decision of the Court of Appeal, in Gallagher v Alpha Catering Services, where it was held that in considering regulation 21, it is necessary to focus on the worker’s activities rather than the needs of the employer, so as to avoid an employer being able to deliberately under-staff and then rely on the exclusion.