(6) Compensatory rest

(6)     Compensatory rest

The right to an equivalent period of compensatory rest arises where an individual falls within WTR SI 1998/1833 reg 21 (special cases), or reg 22 (shift workers), and as a consequence any rights to rest periods or rest breaks under the WTR are excluded, and the individual is required to work during what would otherwise have been a rest break or rest period. It also arises when such a requirement is made as a consequence of any modification of any of the provisions conferring these rights by a collective agreement, using the facility for this given by reg 23(a). The requirement made by reg 24 is that the employer must 'wherever possible' allow the worker to take an equivalent period of compensatory rest. Where this is not possible 'for objective reasons', reg 24(b) provides that the employer has to afford the worker 'such protection as may be appropriate in order to safeguard the worker's health and safety'.

These provisions are another example of verbatim transposition of the wording of the WTD. They can best be described as Delphic. Indeed it is easy to sympathise with the tribunal in the Transocean case, which felt driven to comment on reg 24(b) that 'it is beyond our own capacities to grasp what the provision could possibly mean'. (The point did not feature in subsequent stages of this litigation.) Obvious issues raised include whether 'compensatory rest' equates to giving time off from what would otherwise be future working time, and