UK Reprimanded Over Directive

29-09-2006

In March 2002, the European Commission alleged, in a formal notice to the United Kingdom, that the UK had not implemented correctly two requirements of the Working Time Directive. In a decision given on 7 September 2006, the European Court of Justice (ECJ) ruled that the UK had failed to fulfil its obligations in both respects.

The first requirement concerns the exemption from the weekly and nightly working limits where a worker's working time as a whole is not measured or predetermined or can be determined by the workers themselves.

However, in an amendment to the Working Time Regulations 2000, this exemption was extended to situations where a worker's working time is partially measured, predetermined or determined by the worker.

In February 2006, the Government announced that, in the light of the Commission's proceedings, it had decided to revoke the exemption with effect from 6 April 2006. As this date was not within the time period set by the Commission for correcting the situation, the ECJ found that the Commission's complaint was well founded. However, no further action is required by the UK as the faulty exemption is no longer in force.

The second issue concerns the guidelines set for employers to actively encourage non-compliance with rest requirements.

The amended regulations correctly implement the Directive's requirements that adult workers are "entitled to" a rest period of not less than 11 consecutive hours in each 24-hour period and to an uninterrupted rest period of not less than 24 hours in each seven-day period. However, the guidance for employers on these provisions, as published by the Department of Trade and Industry (DTI), states:

"Employers must make sure that workers can take their rest, but are not required to make sure they do take their rest."

The ECJ agreed with the Commission's argument that these guidelines endorse and encourage a practice of non-compliance with the requirements of the Working Time Directive. The guidelines effectively instruct employers that they are not required to ensure that the workers are actually invoking and benefiting from the rest periods to which they are entitled, but merely that those who wish to claim such periods are not prevented from doing so. As a result, the guidelines dissuade employers from ensuring that workers benefit from the minimum daily and weekly rest requirements.

Accordingly, the ECJ ruled that, by letting it be understood that employers are under no obligation to ensure that workers are actually able to exercise their rights to minimum rest periods, the DTI's guidelines are clearly liable to render the rights meaningless and are incompatible with the objective of the Directive.

Neither the minimum requirements nor the objective of the Working Time Directive are met if guidelines indicate that employers are not required to ensure that the workers actually exercise their rights.

The ECJ's judgement acknowledges that there are limits as to how far employers can go when enforcing minimum rest periods. It states:

"Compliance with the obligations should not, as a general rule, extend to requiring the employer to force his workers to claim the rest periods due to them. The employer's responsibility concerning observance of the rest periods provided for by that directive cannot be without limits."

It remains to be seen to what extent the DTI will feel it necessary to strengthen its guidance by instructing them to ensure that workers actually exercise their rights. The Regulations correctly provide workers with "entitlement" to rest breaks and provide recourse to an employment tribunal if their employer does not allow them to take the breaks.

There have been few, if any, claims made to tribunals to enforce the right to rest breaks since the legislation came into force in 2000. Beyond giving workers an "entitlement" to rest breaks, the Regulations do not impose any further obligation on employers to ensure that workers take the breaks.

The ECJ decision repeatedly refers to the health and safety obligations that lie behind rest break requirements. However, it is a curious state of affairs that a member state is required to impose a stricter requirement in its published guidance than is required by the Directive itself.

It would make more sense for the ECJ to require stronger guidance to be directed at workers themselves – reminding them of their entitlements and the actions they can take if their employers deter them in any way from taking their breaks.

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