Employment Tribunal Rejects Late Pay Complaints

OUTCOME: Dismissed

Case Numbers: 2408686/2022 & 2408687/2022

1

EMPLOYMENT TRIBUNALS

Claimants:

[redacted]

(2) Mr [NAME]

Respondent: [redacted]

Heard at:

Manchester Employment Tribunal

On:

31 March 2025, 1, 2 and 3 April 2025 (4 days)

Before:

Employment Judge Tobin (sitting alone)

Appearances Claimants:

[redacted]

Respondent: [redacted]

JUDGMENT

The Employment Tribunal determines as follows:

1 The first claimant withdraws his complaint in respect of shortfall in holiday pay.

2 The first claimant’s claims in respect of sick pay, scale or rate of pay, Covid pay were presented outside of the time limit contained in s23 Employment Rights Act 1996 in circumstances where it was reasonably practical to bring such complaints within the appropriate statutory time limit. In addition, these complaints were not brought within such further period as the employment tribunal considered reasonable.

3 The [NAME] claimant’s claims in respect of shortfall of holiday pay, sick pay, scale or rate of pay and Covid pay were presented outside of the time limit contained in s23 Employment Rights Act 1996 in circumstances where it was reasonably practical to bring such complaints within the appropriate statutory time limit. In addition, these complaints were not brought within such further period as the employment tribunal considered reasonable.

4 The respondent did not breach the first claimant’s and [NAME] claimant’s rights under the Working Time Regulations 1998 in respect of rest breaks.

2 5 Accordingly, proceedings are hereby dismissed.

REASONS

The case

1. The claimants made claims in respect of holiday pay, under the Working Time Regulations 1998 (“WTR”), unauthorised deduction of wages, under Part II Employment Rights Act 1996 (“ERA”), and breach of Regulation 12 WTR.

2. The case was summarised by Employment Judge King and Employment Judge Anderson following the hearings of 24 February 2023 and 18 September 2023 respectively [see pages 31-40 and 56-66 of the Hearing Bundle].

3. Employment Judge King issued a revised list of issues on 2 April 2023 [Hearing Bundle pages 41-44] as follows:

1. Unauthorised deductions (Part II of the Employment Rights Act 1996)

Time limits 1.1 Does the Tribunal have jurisdiction to consider the complaint?

1.1.1 Was there 1 or more series of deductions? Such a series of deductions must not have a gap of more than 3 months between any 2 deductions.

1.1.2 In relation to each series of deductions, what was the date of the last deduction in the series? Was that deduction within the period of 3 months (plus any extension in relation to ACAS early conciliation) prior to the presentation of the complaint?

1.1.2.1 If not, was it reasonably practicable for the complaint to be presented in time?

1.1.2.2 If it was not reasonably practicable for the complaint to be presented in time, was the complaint nevertheless presented within a reasonable time?

1.1.3 Where a deduction is not part of a series of deductions, was that deduction within the period of 3 months (plus any extension in relation to ACAS early conciliation) prior to the presentation of the complaint?

1.1.3.1 If not, was it reasonably practicable for the complaint to be presented in time?

1.1.3.2 If it was not reasonably practicable for the complaint to be presented in time, was the complaint nevertheless presented within a reasonable time?

1.2 Did the respondent make unauthorised deductions from the wages properly payable to the claimant(s) and if so, how much was deducted?

1.2.1 Holiday pay The claimants say that from 3 November 2020 onwards the respondent paid holiday pay at a rate of 0.8 FTE when it should have been at a rate of 1 FTE. If this is correct, on what dates was holiday pay incorrectly paid. How much are the claimants owed?

3 1.2.2 Sick pay The claimants say that from 3 November 2020 onwards the respondent paid sick pay at a rate of 0.8 FTE when it should have been at a rate of 1 FTE. If this is correct, on what dates was sick pay incorrectly paid. How much are the claimants owed?

1.2.3 Rate of pay or pay scale The claimants say that they should have been paid at the top rate of the pay scale in the sum of £14.55 per hour, not on the intermediate rate of £12.86 per hour. If this is correct, from when should the higher rate have been paid? how much are the claimants owed?

1.2.4 Covid pay Between 3 November 2020 and February 2021 (“the Covid period”) did the respondent pay the claimants at 0.8 FTE rather than at a rate of 1FTE? If so, between what period and how much are the claimant’s owed.

Rest breaks 2. Breach of Working Time Regulations 1998

2.1 Do the claimant fall within one or more of the exceptions under Regulation 21 WTR?

2.2 If not, has the Respondent given the claimants rest breaks within the meaning of Regulation 12 WTR 1998?

2.3 If, however, the claimants do fall within one or more of the Regulation 21 exceptions:

2.3.1 Was it possible for the respondent to grant the claimants an equivalent period of compensatory rest under Regulation 24(a) WTR?

2.3.2 If so, did the respondent grant the claimants equivalent periods of compensatory rest under Regulation 24(a) WTR?

2.3.3 If it was not possible for objective reasons for the respondent to grant the claimants an equivalent period of compensatory rest, has the Respondent afford such protection as may be appropriate in order to safeguard the claimants’ health and safety, as required by Regulation 24(b) WTR 1998?

2.4 [Remedy…]

2.5 [Remedy…]

4. The respondent provided an updated draft list of issues at the start of the hearing, which we discussed, and which was helpful.

The law

5. Under s13 ERA a “worker” (which is a wider definition than “employee”) has the right not to suffer an unauthorised deduction from his pay:

(1) An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the workers contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

4 6. The non-payment of wages, or the non-payment of holiday pay (in full or in part), could amount to an unauthorised or unlawful deduction of wages.

7. A deduction is defined in s13(3) ERA as follows:

Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of wages properly payable by him to the worker on that occasion… the amount of the deficiency shall be treated… as a deduction…

8. An employee has a right to complain to an Employment Tribunal of an unlawful deduction from wages pursuant to s23 ERA. Where a Tribunal finds a complaint under s23 ERA is well founded, it shall make a declaration to that effect but s25 ERA provides that an employer shall not be ordered by a Tribunal to pay or repay a worker any amount in respect of a deduction or payment in so far as it appears to the Tribunal that the he has already paid or repaid any such amount to the worker.

S23 Complaints to employment tribunals. (1) A worker may present a complaint to an employment tribunal— (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)), (c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or (d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1). (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2). (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. (4B) Subsection (4A) does not apply so far as a complaint relates to a deduction from wages that are of a kind mentioned in section 27(1)(b) to (j).] (5) …

9. The relevant provisions WTR are as follows:

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Regulation 12 (1) Where a worker's daily working time is more than six hours, he is entitled to a rest break. (2) The details of the rest break to which a 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. (3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one. (4) Where a [NAME]’s daily working time is more than four and a half hours, he is entitled to a rest break of at least 30 minutes, which shall be consecutive if possible, and he is entitled to spend it away from his workstation if he has one. (5) If, on any day, a [NAME] is employed by more than one employer, his daily working time shall be determined for the purpose of paragraph (4) by aggregating the number of hours worked by him for each employer.

Regulation 21 Subject to regulation 24, regulations 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply in relation to a worker— (a) where the worker’s activities are such that his place of work and place of residence are distant from one another, including cases where the worker is employed in offshore work, or his different places of work are distant from one another; (b) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers or security firms; (c) where the worker’s activities involve the need for continuity of service or production, as may be the case in relation to— (i) services relating to the reception, treatment or care provided by hospitals or similar establishments (including the activities of doctors in training), residential institutions and prisons; (ii) work at docks or airports; (iii) [NAME], radio, television, cinematographic production, postal and telecommunications services and civil protection services; (iv) gas, water and electricity production, transmission and distribution, household refuse collection and incineration; (v) industries in which work cannot be interrupted on technical grounds; (vi) research and development activities; (vii) agriculture; (viii) the carriage of passengers on regular urban transport services; (d) where there is a foreseeable surge of activity, as may be the case in relation to— (i) agriculture; (ii) tourism; and (iii) postal services; (e) where the worker’s activities are affected by— (i) an occurrence due to unusual and unforeseeable circumstances, beyond the control of the worker’s employer; (ii) exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer; or (iii) an accident or the imminent risk of an accident; (f) where the worker works in [NAME] and— (i) his activities are intermittent; (ii) he spends his working time on board trains; or (iii) his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.

Regulation 24 Where the application of any provision of these Regulations is excluded by regulation 21 or 22, or is modified or excluded by means of a collective agreement or a workforce agreement under regulation 23(a), and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break— (a)his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and

6 (b)in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety.

10. Regulations 12, 21 and 24 govern workers entitlement to rest and working hours. Regulation 12 provides the right to a minimum uninterrupted rest break of 20 minutes if a worker’s daily working time exceeds 6 hours. Regulation 21 outlines circumstances (such as certain shifts patterns or jobs requiring continuous service) in which employers may modify or exclude rest breaks. Regulation 24 requires employers to ensure that workers receive adequate compensatory rest where normal rest entitlements are not possible.

The hearing

11. The hearing was conducted by video through HM Courts and Tribunal Service Cloud Video Platform.

12. The claimants were employed as Community Payback Supervisors (“CPS”) supervising People on Probation (“POP”). The claimants provided written witness statements and updated schedule of losses prior to starting the hearing. The claimants represented themselves. I refer to the claimants by their title and names as this will be easier to read than “first claimant” and “[NAME] claimant”.

13. The respondent was represented by Ms [RESPONDENT] of counsel and called the following witnesses: Mrs [COUNSEL] (Senior Reward Policy Adviser, [COMPANY]), Mr [NAME] (Community Payback Manager and former manager of the claimants), Mrs [NAME] (Unpaid Work Operations Manager and the claimants’ former manager), Ms [NAME] (Head of Unpaid work for another region) and [NAME] (Deputy Direct for the Community Delivery Group).

14. I read the statements prior to hearing evidence. All witnesses confirmed their statements and were cross-examined by their opponents. I asked some questions to help clarify matters. I was provided with a hearing bundle of 526 pages. I was also assisted by a chronology, agreed cast list, acronym list and a reading list.

15. At the conclusion of the hearing, I broke to consider the case. I then had sufficient time to make my decision, and I gave judgment with oral reasons. I regret the delay in providing this confirmation and I have written to the parties accordingly.

Time limits

16. The claim form for both claimants was presented on 2 November 2022. ACAS early conciliation started on 6 September 2022, and a certificate was issued on 18 October 2022. 3 months less a day prior to the date of the early conciliation notification was 7 June 2022.

17. The effect of s23(4A) ERA is that the tribunal cannot consider so much of a complaint as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of 2 years ending with the date of presentation of the claim. In this case, this means that the Tribunal cannot consider

7 any complaint about a deduction that is alleged to have been made prior to 3 November 2020, unless I am satisfied of the basis upon which I can exercise my discretion to hear these claims out-of-time.

18. S23(2) ERA when taken with s23(3A) ERA requires a complaint about an alleged unlawful deduction of wages to be made within 3 months less a day (plus early conciliation extension) of the date of payment of wages from which the deduction was made, or where there is a series of deductions, from the last in the series, unless it was not reasonably practicable to do so.

19. As to whether 2 or more deductions constitutes a series of deductions, this is a question of fact, and all relevant circumstances must be taken into account, including in relation to the deductions in issue; their similarities, and differences; their frequency, size and impact; how they came to be made and applied; what links them together; and other relevant circumstances. Whether a series of unlawful deductions remains intact when interrupted by a lawful payment will depend on the nature and reason for the deductions of which complaint is made, and whether and, if so, how, any lawful payment has anything to do with them: Chief Constable of the Police Service of Northern Ireland and anor v Agnew & ors [2023] UKSC 33. Where there had been a series of deductions and the employer made a repayment of later deductions, the tribunal was entitled to hold that time ran from the last deduction, and not the last deduction in respect of which the employer had failed to make repayment: [NAME] v [NAME]/712/01. So, the clock starts to run from the date of the last deduction.

Shortfall in holiday pay

20. We discussed the applicability of time limits at the hearing and Mr [NAME] withdrew his claim for holiday pay.

21. Mr [NAME] issued proceedings were issued on 2 November 2022 (with Mr [NAME]). This was after a period of ACAS Early Conciliation from 6 September 2022 to 18 October 2022. The last date on which [NAME] had taken annual leave before that was 14 April 2022, over 6½ months earlier.

22. There was not much evidence in Mr [NAME] witness statement to explain his delay in issuing proceedings.

23. Mr [NAME] accepted in evidence that he would have been paid in respect of these relevant holidays on 30 April 2022, which was the date that the clock started. Mr [NAME] confirmed that by April 2022, he was aware of the fact that the respondent had been treating him as a 0.8 FTE employee. He was fit to work between 30 April 2022 and 29 July 2022, so he was not incapacitated during this period. Mr [NAME] (indeed both claimants) were sufficiently intelligent to make enquiries about their work entitlements and how to go about enforcing these rights. [NAME] was a member of his trade union, and he could with obtain assistance or sought legal support through his trade union. If the trade union was not helpful then he could have sought advice elsewhere, for example without cost through a law centre or Citizens Advice Bureau. He could have researched on the internet. I find it would have been reasonably

8 practicable for Mr [NAME] to have brought a claim/applied for ACAS EC in relation to alleged underpayment of holiday by 29 July 2022.

24. I explained that employment tribunal time limits should be followed and that time limits only ought to be departed from with clear excuse. The tests set out under s23(4) ERA above represent a high hurdle. There is a 2-stage test; if it was not reasonably practical for Mr [NAME] to bring his claim within 3 months, then he must do so within a further reasonable period. It was reasonably practical that Mr [NAME] issue proceeding within the appropriate time limit, but in any event, even if he missed that date, he also failed to bring his complaint within a reasonable period thereafter.

25. Accordingly, Mr [NAME] claim for holiday pay must fail at that point.

26. If the Tribunal were to find that it did have jurisdiction to hear Mr [NAME] claim for underpaid holiday, Mr [NAME] said in cross-examination that he did not suggest he was owed anything outstanding for April 2022 onwards, and he also accepted the evidence of Mrs [NAME] as to the exercise that was carried out in respect of “topping up” pay for June 2021 to 29 April 2022. So far as any holiday taken prior to that, the only record is that at page 342 of the hearing bundle, which suggests 29 days of holiday were taken in the period December 2020 to 23 June 2021. The respondent did not have pay records to demonstrate what Mr [RESPONDENT] was paid for these days, but Mr [NAME] said it would have been 0.8FTE (plus unsocial hours and overtime) because Mr [NAME] was recognised as a 0.8FTE employee when he managed him from April 2018.

Sick Pay

27. Mr [NAME] was absent from 25 July 2022 to 12 November 2022 [HB345]. Mr [NAME] was absent from 7 September 2022, which continued at the date of the claim [HB346]. That claim was in time but, the interim grievance decisions [HB360-362] decided to pay at the rate of 1.0 FTE from 30 May 2022 onwards. Both claimants were compensated in respect of the sickness absence in 2022 on the basis of a 1FTE salary. Both claimants accepted in their evidence that they do not claim that there is any sum outstanding in relation to these periods.

28. So, in respect of the previous unpaid element

29. Mr [NAME] recorded as having had sickness absence between 18 November 2020 and 25 November 2020. Mr [NAME] said that he recalled Mr [NAME] was in fact 0.8FTE at all times during his management of him and therefore would have been paid at that rate for sickness absence. Which I accept he was.

30. If Mr [NAME] felt that there had been an underpayment in respect of sick pay in November 2020, he could and should have brought a complaint about that at the time. This was a discrete period of illness. In these circumstances, I do not accept that sick pay forms part of a series of deductions because it does not relate to a single uninterrupted episode. There is no regularity or continuity in these ill-health absences, and it could not be predicted. The absence is historic. The claimant should have checked his payslips after each episode and pursued any irregularity promptly. Such a delay is not justified.

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31. The respondent accepted that Mr [RESPONDENT] was absent for 1-day on 9 November 2021. By November 2021, Mr [RESPONDENT] was receiving payslips from the respondent which showed that he was identified as a part-time employee, and he could and should have brought a claim at this time about this alleged deduction promptly. That was 1 year before he issued proceedings and 7 months before the ACAS Early Conciliation. Again this delay is too long and cannot be justified.

32. Mr [NAME] is recorded as having had sickness absence in 2020 [HB346], but I cannot go that far back because the Tribunal has no power to hear a complaint about that as it pre-dates 3 November 2020: see s23(4A) ERA.

Scale or rate of pay

33. The claimants contended that were entitled to be paid according to the top of the pay scale, which they suggest equates to £14.50 per hour. In their updated Schedules of Losses, they sought to claim this from November 2020 onwards, stating that they were “on top pay band in 2018 onwards.”

34. This is a weak claim, and so far as I can see, is not based on a clear legal foundation.

35. Both claimants joined Cheshire & Greater Manchester Community Rehabilitation Company (”CGMCRC”) on an annual salary (1FTE equivalent) of £22,039. This was at the bottom of the relevant pay scale according to the documents and Mrs [NAME] evidence, which I accept [HB82, 84]. The claimants’ employment transferred to this respondent under a Staff Transfer Scheme pursuant to Schedule 2 to the Offender Management Act 2007 and an associated Framework for Transfer and Staff Transfer and Protections Agreement [HB228-264].

36. Under this arrangement, the pre-transfer salary of staff was assimilated by taking the claimants’ basic salary (at the 37-hour equivalent) at the point of transfer, and assimilating it across to the equivalent, or next highest pay point in the National Probation Service pay scale [HB233]. Those staff paid a salary of £24,801 at the CGMCRC therefore assimilated at £24,801 as there was this equivalent on the NPS pay scale [HB242] and coincided with their pre-transfer earnings.

37. Mr [NAME] accepted that his gross (FTE) salary was £24,801 immediately before the transfer in June 2021.

38. I find that [NAME] was also paid a salary of £24,801 immediately prior to the transfer. This was what the data provided by the CGMCRC suggested, and it is likely that both claimants had the same salary as they had both started in employment with the CGMCRC at the same time and on the same terms. There is an inconsistency in the documentation, see email sent by Mr [NAME] to Mr [NAME] [HB102], which I accept was clearly a mistake, and for reasons in the respondent’s submissions I accept it was. In any event, the payslips confirm the correct amount paid and Mr [NAME] did not query the other figure or place reliance upon it.

39. The claimants’ case is that they should have been paid more in recognition of their hard work and competence. That is a collective bargaining issue or a matter for

10 individual bargaining. I read the contracts of employment carefully. I went through these with both claimants at the hearing, I interpret the contracts of employment as not conferring an automatic escalation and, indeed, when we went through this at the hearing; I could not see any such clear and unambiguous indication of automatic pay escalation.

40. The first pay progression decisions were linked to the Competency Based Framework (CBF), but that was outside our reference period as this came later.

Covid pay

41. These claims relate to 2 November 2020 to February 2021. The complaints are also significantly out of time, at least 1 year 3 months before ACAS Early Conciliation period.

42. Covid changed everything, contracts changed, hours of work, etc. Any claim involving pay over the covid period is a discrete claim, with a time limit running from the end of lockdown. The claimants could not rely upon on-going deduction as wages were paid on a wholly different basis.

43. If the Claimants had a complaint about pay during the Covid pandemic crisis then they could and should have brought a complaint within the appropriate time limit as extended by statutory provisions.

44. For the same reasons as set out above, there was no credible and convincing evidence from Mr [NAME] or Mr [NAME] to explain the delay, and which could afford me sufficient reasons to exercise appropriate discretion so as to allow these claims out-of-time. I determine that it was reasonably practical to bring any claim or ACAS notification for shortfall in wages over this period within 3 months of the payments made.

WTR: REST BREAKS

45. Regulation 30 says that a worker may present a complaint to an employment tribunal that his employer has refused to permit him to exercise any right he has under Regulation 12(1) or Regulation 24 (in so far as it applies where Regulation 12(1) is modified or excluded). The complaint must be brought before the end of the period of 3 months (plus early conciliation extension) “beginning with the date on which it is alleged that the exercise of the right should have been permitted…” Regulation 30B provides for the time limit in Regulation 30 to be subject to an extension for Early Conciliation. In Scottish Ambulance Service v Truslove EAT 0028/11, the Employment Appeals Tribunal (“EAT”) determined that time started running on each occasion that the claimants did not receive the WTR rest to which they were entitled.

46. Whilst there are conflicting authorities on the point, the EAT in [NAME] v [COMPANY] [2017] ICR 287 held that a failure by the employer to make provision for rest breaks can amount to a “refusal” to permit them even in the absence of an express request by the worker.

11 47. Significantly, neither party suggested that there is a collective agreement or workforce arrangement relevant to this case.

48. [NAME] v [COMPANY] [2005] IRLR 102 described the Regulation 12 rest break as “an uninterrupted period of at least 20 minutes which is neither a rest period nor working time and which the worker can use as he pleases.”

49. Regulation 12 is, however, subject to Regulation 21, which provides (so far as relevant) that: Subject to regulation 24, regulations…12(1) do not apply in relation to a worker – …(b) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers, or security firms; (c) where the worker’s activities involve the need for continuity of service or production, as may be the case in relation to – i. services relating to the reception, treatment or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons...”

50. In [NAME] v [COMPANY] (No 2) [2011] IRLR 918 the Court of Appeal held that under Regulation 21(b) what fell for consideration was whether the particular worker was required to provide that permanent presence.

51. Regulation 24 provides (so far as relevant) that: “Where the application of any provision of these Regulations is excluded by regulation 21 or 22, …..and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break – His employer shall wherever possible allow him to take an equivalent period of compensatory rest, and In exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety.”

52. [ADDRESS] of Appeal in [NAME] accepted that an equivalent period of compensatory rest need not be a rest break as defined. If rest is to qualify as “an equivalent period of compensatory rest” under Regulation 24(a), “it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes [see paragraphs 52 – 55].

53. In [APPELLANT], there had been a concession on the part of the claimant that the exception in Regulation 21(b) applied, but the Court of Appeal considered that the appellant’s arguments about whether Regulation 12 rest breaks could have been afforded to the claimant engaged the issue of whether Regulation 21(b) applied (and not only whether Regulation 24 had been met). As to this: a. [ADDRESS] of Appeal accepted in principle that the employer had to show objective reasons to demonstrate why regulation 21 applied. b. However, that the employer could have arranged for rest breaks if money was no object did not mean that the employer could not establish such objective reasons, noting “it will always be possible to provide the requisite rest breaks if

12 money is no object. However, the recitals emphasise that imposing administrative, financial and legal constraints may hold back the creation and development of small and medium sized undertakings”. Further, it was not necessary for it to have extensive and detailed information about the costs of employing extra staff. It was obvious that this would inevitably add considerably to the overall costs of the contract and in a competitive market would be bound to jeopardise the employer’s ability to perform it.” c. Additionally, “the tribunal found in terms that there were logistical and administrative problems which would arise if additional staff had to be employed.” d. As to whether Regulation 24(b) applies, that paragraph does not set two separate hurdles of exceptional circumstances and objective reasons. Rather “para (b) merely requires that there should be objective reasons why an equivalent period of compensatory rest cannot be provided. Cases where the employer can provide neither a [NAME] rest break nor a compensatory alternative will perforce be exceptional. The reference to exceptional circumstances, as the tribunal observed, confirms the fact that the derogation is narrow and should be restrictively applied. But we do not accept that the provision sets two hurdles of exceptional circumstances and objective reasons: the presence of the latter establishes the former.” e. It is not necessary, in order for Regulation 24(b) to apply, that the employer has conducted a specific health and safety assessment as to the specific risks arising from the fact that there was the potential for a break to be interrupted.

54. In [NAME] v Crawford [2019] EWCA Civ 269, the Court of Appeal held that equivalent compensatory rest under Regulation 24(a) does not need to be an uninterrupted continuous period of 20 minutes. Rather “the intention had to be that the rest afforded to the worker should have the same value in terms of contributing to his or her wellbeing.” It was not necessary for the Court of Appeal in that case to consider what form “appropriate protections” under Regulation 24(b) may take but suggested that “it will necessarily be of a different character from the compensatory rest under (a).”

55. The claimants placed emphasis on a first instance decision: [NAME] v Secretary of State for Justice Case No: 2204749/2021. That decision is not binding upon this tribunal in the present claims, although its circumstances are similar, so it is highly relevant.

56. The tribunal only has jurisdiction to hear the complaint in so far as it relates to an alleged refusal(s) to permit the claimants to exercise their right under Regulation 12 and/or 24 between 7 June 2022 and 2 November 2022.

57. In respect of Mr [NAME], he was absent from 25 July 2022 until after the date of presentation of his claim, so the relevant period under consideration can only be 7 June 2022 to 24 July 2022. In respect of Mr [NAME], he was absent from 7 September 2022 onwards, and so the relevant period is 7 June 2022 to 6 September 2022.

58. During their working time, the claimants could have tea and coffee and eat sandwiches or other food brought with them. They could have toilet breaks, but I accept that these would not be rest breaks in the [NAME] 12 sense and that is consistent with the findings of [NAME] at paragraphs 123 and 124.

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59. This was a case in which Regulation 21(b) and/or (c)(i) applied. See also [NAME] paragraphs 131 and 132.

60. There were objective reasons why the respondent could not have arranged the claimants’ work so as to enable them to take [NAME] type rest breaks. The role of a CPS was to supervise POP and I accept that this could be a difficult and demanding job. There were objective reasons why it was necessary for each claimant to provide this supervision throughout the day. The POP undertaking supervised unpaid work tend to be individuals who pose a greater than ‘low risk’ and/or have been assessed as unsuitable for unsupervised work according to Mrs [NAME], whose evidence I accept. Furthermore, the CPS and the respondent had a responsibility for the health and safety of the POP, and in ensuring that no harm or damage was caused to the [NAME] of the unpaid work, or also to the public as there would be risks if POP were left unsupervised.

61. Importantly, POP were not allowed to leave the unpaid work project site during break times, and if they did, their time away would not have counted towards their sentence. There was accordingly a need for them to be supervised to ensure that they remain on site (and so that a record could be retained if someone left).

62. Significantly, both claimants recognised the need for this continual supervision by CPS of POP, as Mr [NAME] did so in correspondence [HB404].

63. There was nothing to be gained from a break at the end of the day. I do not accept that such a break would necessarily be [APPELLANT] complaint in the circumstances of this case. The claimant had a discretion as to how the day should be organised. The work was varied, and the CPS was in control. As I said at the hearing, this was not repetitive, monotonous work for which it is even more imperative that the person takes breaks. With respect to the earlier case, I believe the Judge in the [NAME] case got this point wrong. It is not feasible for another CPS to travel to the session at the end of the day for a break at “home time” but, more importantly, this really misses the point. The CPS had finished their session, and nothing would be gained in the circumstances from lengthening the day unnecessarily and providing a delay in travelling back to base or straight home. I suspect such a proposal would be hugely unpopular, and largely ignored, amongst staff, even if it was possible.

64. There were objective reasons within the meaning of Regulation 24(b) why it was not possible to grant compensatory rest under Regulation 24(a), and I accept the respondent afforded the claimants such protection as may be appropriate to safeguard their health and safety.

65. The claimants did not have to undertake manual work throughout the day. They would demonstrate tasks to the group, but thereafter their work was less physical, and they could sit down.

66. The only appropriate way in which the claimants could have taken Regulation 12 rest breaks during the unpaid workday was if the respondent could have made arrangements for another CPS to come in place of the claimants to cover their breaks. I accept the respondent’s case that there were objective reasons why this was not

14 feasible, based largely on the cost of providing [NAME] supervisors to enable all CPS to take breaks. Put frankly, I am satisfied that the costs would have been prohibitive, indeed, sufficient to undermine the service provision.

67. Ms [NAME] and Miss [NAME] were credible and convincing witnesses. Both were clear on the financial costs on an overstretched service. They gave clear evidence, which was not challenged to any great degree by the claimants. I believe the accounts of these respondent witnesses and their costs projections. I accept the costs of such breaks were of such that it could render the respondent potentially unable to fulfil its responsibilities [see HB370-371]. The cost of rolling out such breaks across all CPS would amount to almost £27m. Health and safety measure are clearly important, but it is not plausible to see this in isolation and these breaks most be set against the ability to provide a service provision.

68. Aside from cost, there were significant logistical and administrative reasons why such breaks were not be workable. These included: a. The distance between sites that a hypothetical [NAME] supervisor would need to cover. b. I accept Ms [RESPONDENT] evidence that the respondent already faced difficulty recruiting sufficient numbers of supervisors, and the need to recruit new people to fulfil the role of [NAME] supervisors would have compounded this recruitment problem. c. Any person supervising the POP would need a comprehensive handover, would need to read the complete project file and understand all the health and safety issues. Such a handover would be likely to be lengthy thereby rendering it more impractical. d. There would have been the additional risk that introducing a [NAME] part way through the day would adversely affect the group dynamic and encourage some POP to push boundaries with the new arrival. It could also have adversely affected the relationship with the [NAME].

69. Doubling-up would not have been feasible, because there was a limit (again for sound, objective reasons) on the number of POP that a single CPS could supervise. Additionally, many of the project areas would not have been large enough to accommodate 2 groups.

70. The was not a rigid or unrelenting workplace. The CPS’ working day was varied and flexible. They were in charge and had a large degree of control over their immediate working environment. The claimants could also have breaks for tea/coffee and lunch alongside POPs. The claimants would have had autonomy over when those breaks could have been taken, and there would have been a welfare area to enable drinks to be made and the breaks to be taken.

71. The claimants had received appropriate PPE, training in health and safety, and training on managing challenging behaviours. They would have authority to tell a POP to leave the project if required.

72. The claimants had a lone working device, worn around the neck and monitored by an external call centre. The claimants could call their manager or a placement coordinator at any time and would be expected to have at least one conversation with such a

15 person during the day. They would have had an iPhone, tablet or laptop to keep in contact. Sometimes, the line manager would attend site to observe.

73. The claimants would have had regular (6-8 weekly) supervision sessions, at which (amongst other things) a line manager would check on wellbeing and address any issues.

74. Significantly, the claimants had access to the Employee Assistance Programme, available 365 days a year, 24 hours a day, 7 days a week, providing independent and confidential support and professional counselling services. They would also have access to an occupational health service, if required.

75. So, on balance, I find that there was no contravention of the WTR. The work of the CPS was such that the absence of a structured 20-minute break in their routine was a permissible exception or derogation in all of the circumstances.

Approved by Employment Judge Tobin

Date: 10 November 2025

JUDGMENT SENT TO THE PARTIES ON

21 November 2025

FOR THE TRIBUNAL OFFICE