Mr Steven Morton v The City of Edinburgh Council — 2021

The claimant worked permanent night shifts as a Residential Care Officer at the respondent's residential support unit. He complained that he had not been permitted to take rest breaks or compensatory rest, and that because he worked during unpaid 30 minute breaks he was entitled to be paid for that time. The tribunal found the claims were in time because the complaints were ongoing and were brought within three months of the last date complained of.

The tribunal found that the claimant's activities involved the need for continuity of service in relation to care provided by a residential institution, so Reg 21(c)(i) Working Time Regulations 1998 applied and Reg 12 did not apply. It also found that the respondent had put arrangements in place enabling a 30 minute break from work duties, including breaks before 1am when three staff were on duty and breaks within the unit after 1am, with the possibility of restarting or taking compensatory rest if interrupted by an emergency.

The tribunal accepted that the claimant had personal objections to taking breaks in residential childcare and had not sought to exercise the right to a break or compensatory rest. It found that the respondent had not refused to permit rest or compensatory rest, and that the claimant worked through breaks by choice rather than because of a failure by the respondent. Since overtime had not been authorised and the unpaid break was properly designated, the wages paid were not less than the wages properly payable.