Mr K McDougall v G&I Allison — 2022

Mr K McDougall brought a single complaint under regulation 30(1) of the Working Time Regulations 1998 alleging that G&I Allison had breached regulation 10(1) by not giving him 11 consecutive hours' daily rest. The tribunal found that, from 29 August 2021 to 24 October 2021, the claimant was routinely rostered for breakfast and dinner service at the Port Charlotte Hotel and on 19 occasions had only 9.5 hours' consecutive rest between finishing dinner service at 10 pm and starting breakfast service at 7.30 am the next morning.

The tribunal rejected the claimant's argument that he was not a shift worker within regulation 22(2), but held that this did not matter because regulation 22(1)(c) is broader and applies to workers engaged in activities involving periods of work split up over the day. It found that the claimant's kitchen work fell within that category. It also accepted that, after the claimant raised the issue by email on 12 October 2021, he was still rostered for less than 11 hours' rest on 16, 17, 23 and 24 October 2021.

On compensatory rest, the tribunal excluded the claimant's annual leave and weekly minimum rest days from the analysis, but held that mornings off and additional days off within the relevant weeks could count as equivalent compensatory rest under regulation 24(a). Relying on Network Rail Infrastructure Ltd v Crawford, it said the rest had to have equivalent value for wellbeing and should be temporally proximate to the deficit. It found that the extra days off and mornings off granted in the relevant weeks were sufficiently proximate and sufficient in length to compensate for the 1.5 hour shortfalls.

The tribunal therefore held that regulation 10(1) did not apply to the claimant in the circumstances because of regulation 22(1)(c), with compensatory rest having been afforded under regulation 24(a). It also noted that there were no time sheets for 8 to 28 August 2021 and that the claimant had not discharged the burden of proving specific deficits in that earlier period. The complaint was dismissed and no financial award was made.