When is a “rest break” a “rest break”?

By: Anthony Kerr (Senior Counsel at the Bar of Ireland and an Associate Professor at the UCD Sutherland School of Law)

When is a “rest break”, as prescribed by Article 4 of Directive 2003/88/EC, not a “rest break”? The answer, according to Advocate General Pitruzzella, is whenever the worker is not free to devote their break time exclusively to their personal and/or social interests: Case C-107/19, XR v Dopravni podnik ECLI:EU:C:2020:96 (13 February 2020).

In this case, which was an Article 267 reference from a Prague City Judge, the claimant had been a firefighter working a shift system with two breaks of 30 minutes each. During those breaks, which had to be taken in, or within the immediate  precincts of the fire-station, he had to be available within two minutes if an emergency call came in. The breaks were only counted as paid “working time” if they were interrupted. The claimant sought payment for his uninterrupted breaks and the Czech judge referred the questions of whether break times during which the worker must be available to his or her employer within two minutes in the event of an emergency call should be regarded as “working time” and, if so, whether it was relevant that such interruptions only occurred infrequently.

Although the Advocate General acknowledged that, except in the case of Article 7, the Directive did not apply to the remuneration of workers, he felt it appropriate to answer the questions. He added, however, that the question of whether “working time” should be remunerated was a matter for the national court. Applying the logic of the CJEU decision in Case C-518/15, Matzak, the Advocate General had little difficulty in  recommending that the objective of Article 4 could not be achieved if the worker’s break could be interrupted at any time. The incidental and unpredictable nature of the emergency calls did not affect the classification of the break as “working time”.

This Opinion was anticipated by the decision of the English Court of Appeal in Gallagher v Alpha Catering Services Ltd [2004] EWCA Civ 1559 which ruled that a “rest break” was required to be free of the characteristics of working time so that it is a period which the worker knows in advance will be uninterrupted and which he/she can use as he/she pleases.

The Directive recognises that it may not be possible to guarantee uninterrupted rest breaks for workers engaged in certain activities such as the fire and civil protection services (see Article 17.3(c)(iii)) but the Advocate General pointed out that the proceedings concerned the classification of the breaks as “working time” or “rest period” and that there could be no derogation from the definitions of those terms.