In a ruling issued in September 2006, the European Court of Justice found that official guidelines accompanying the UK’s legislation implementing the EU working time directive infringe Community law.
In 2004, the European Commission brought an action (case C-484/04) to the European Court of Justice (ECJ) against the UK government over its implementation of the EU directive on certain aspects of the organisation of working time, now consolidated in Directive 2003/88/EC . More specifically, the Commission objected to the way that the UK had applied the directive’s rules on daily and weekly rest periods for employees.
The case also referred to the UK’s application of a derogation from some of the directive’s provisions for workers whose working time is partially not measured or predetermined, or can be determined by the workers themselves. However, this point was conceded by the UK government and is not considered here.
Working time guidelines
The UK implemented the working time directive through the Working Time Regulations 1998 (UK9810154F) and the Department of Trade and Industry (DTI) published guidelines aimed at helping employers and workers understand the regulations.
Under the directive, EU Member States are required to take the necessary measures to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period and, in each seven-day period, to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest. The UK guidelines stated at several points that: ‘Employers must make sure that workers can take their rest, but are not required to make sure they do take their rest.’
According to the Commission, this statement endorses and encourages a practice of non-compliance with the directive’s requirements: employers are thereby instructed in the above guideline that they are not required to ensure that 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. The Commission maintained that these express instructions to employers through the guidelines dissuade employers from ensuring that workers benefit from the directive’s minimum daily and weekly rest requirements. The Commission therefore initiated the proceedings that led to the ECJ case (UK0404102N).
ECJ judgement
The ECJ issued its judgement on 7 September 2006. It states that the directive’s purpose is to lay down minimum requirements to improve workers’ living and working conditions by ensuring that they are entitled to minimum rest periods. Those principles constitute particularly important rules of Community social law from which every worker must benefit.
To ensure that the rights conferred on workers are fully effective, Member States are obliged to guarantee that the right to benefit from effective rest is observed. A Member State which indicates that an employer is nevertheless not required to ensure that workers actually exercise such rights does not guarantee compliance with either the directive’s minimum requirements or its essential objective. By providing that employers must merely give workers the opportunity to take the minimum rest periods provided for – without obliging them to ensure that those periods are actually taken – the guidelines are clearly liable to render the rights enshrined in the directive meaningless and are incompatible with its objective.
The ECJ therefore ruled that the UK has failed to fulfil its obligations under the directive, with the implication that the government should amend the offending parts of the guidelines.
Reaction to the ruling
According to the Commission, the ECJ ruling confirms its position that ‘daily rest for workers is a right and cannot be renounced. Employers must ensure that workers have rest periods – it is a matter of health and safety, and is not something that can be traded off.’
The Trades Union Congress (TUC) General Secretary, Brendan Barber, stated: ‘Employers will now have to do their utmost to ensure their staff get the breaks they are entitled to. The government must now change its guidance on rest breaks to ensure that workers know their rights and can benefit from them, and that employers know their responsibilities and meet them fully.’
However, on the employers’ side, the Director of Human Resources Policy at the Confederation of British Industry (CBI), Susan Anderson, reacted negatively, commenting: ‘The realities of working life cannot be ignored … employers cannot police what employees do during their weekends or evenings – whether they take a second job, for example, or spend an hour or two thinking about a work issue.’
The relevant sentence in the version of the guidelines on the DTI website now reads: ‘Employers must make sure that workers can take their rest.’
Mark Carley, SPIRE Associates/IRRU