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The CJEU has considered another case involving rest breaks that can be interrupted at short notice and whether they meet the requirements of the Working Time Directive. Article 2 says that working time is any period of time where the worker is working, at the employer’s disposal and carrying out their duties. A rest break is any period which is not working time. There is no halfway house here – time is either working time or a rest break. A series of European cases have looked at rest breaks which can be interrupted at short notice and whether that undermines the whole point of the WTD  which is to promote health and safety.

In XR v Dopravni podnik hl m Prahy, the employee was a firefighter. In a 12 hour shift he had two unpaid thirty-minute rest breaks which he could take at the canteen 200m away from his workstation. During that break, he could be interrupted at any time if there was an emergency call. He would then have to be outside the canteen within 2 minutes of that call. The break was only included in working time if it was interrupted by an emergency call out. The employee said all breaks should be paid.

The CJEU confirmed that the purpose of the WTD is health and safety, not pay. It was relevant here that the firefighter was required to remain at work and away from his family and social environment at all times during his breaks. He had little freedom to manage his own time during rest breaks. The same would be true even if an employee doesn’t have to be at work during a break but the constraints placed on them have a significant impact on their ability to pursue personal and social interests. A rest break where an employee can be called back at short notice should be regarded as working time because the worker cannot plan any kind of recreational activity even for a short period because they don’t know if or when they will be called out. This is likely to the put the employee on ‘permanent alert’. The CJEU said a rest break where an employee can be called back on 2 minutes notice should be classified as working time if it is clear that the limitations imposed on the employee objectively and significantly affect their ability to manage their own time and devote it to their own interests.

This case follows the existing line of authorities on this issue but is a more extreme example because the response time is so short. CJEU cases are no longer binding on UK courts post-Brexit but can be taken into account when construing EU derived law. However it is worth noting that the entitlement to rest breaks under the WTR 1998 do not apply in relation to the police and emergency services where working requirements conflict. This case is relevant to other employers though, especially those in sectors such as hospitality and the care sector where breaks may be interrupted at short notice due to business requirements. An unpaid break must be a genuine break.

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