UK: ECJ’s Judgment In Working Time Case

On 7 September 2006, the European Court of Justice ("ECJ") ruled that the UK Government was breaking the Working Time Directive by not guaranteeing that employers gave their staff the daily and weekly rest breaks they were entitled to.

The ruling was not that the Working Time Regulations themselves were defective. Rather it was that the DTI’s guidance wrongly informed employers they were under no obligation to ensure that employees are actually able to exercise their rights.

Unhelpfully, the ECJ did not say what employers were actually obliged to do, and the DTI has only changed its guidance in this respect to say:-

"Employers must check… how workers’ working time is arranged and whether they are able to take the rest breaks they are entitled to."

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

More useful guidance on the actual extent of the obligation is in the advisory opinion of the Advocate General in the case.

She said:-

"It is for the employer actively to see to it that an atmosphere is created in the firm in which the minimum rest periods… are effectively observed… [that] within the organisation appropriate work and rest periods are actually scheduled… no de facto pressure should arise which may deter workers from actually taking their rest periods… it is irrelevant whether such pressure derives derives from the employer - for example through performance targets set by him - or from the fact that some of the employees do not use up the rest periods due to them and therefore a kind of group pressure arises for other workers to do the same."

So, that indicates, among other things, bosses need to lead by example and take their breaks.

The daily and weekly rest breaks which employees are entitled to under the Working Time Regulations 1998 are: -

1. a rest break of not less than 20 minutes, away from the workstation, when working more than 6 hours a day (Reg.12);
2. a rest period of 11 consecutive hours in each 24 hour period during which they work (Reg. 10);
3. an uninterrupted rest period of not less than 24 hours (not including the 11 hour daily rest period in Reg. 10) in each 7 day period. Alternatively, the employer can elect to give two uninterrupted 24-hour periods, or one uninterrupted 48-hour period off in every 14-day period (Reg. 12).

16 and 17 year old workers have more generous provision for them.

Regulations 21 and 22 provide certain exceptions, and Regulation 23 allows modification by collective or workforce agreement, but in all those cases Regulation 24 requires "compensatory rest" to be provided, wherever possible.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 15/09/2006.