Working time
In Commission -v- United Kingdom, the European Court of Justice (ECJ) has ruled that the Government was wrong to publish guidance saying that employers do not have to ensure that workers actually take these rest breaks.
What does the law say?
Regulation 10 of the WTR (implementing article 3 of the directive) states that an adult worker is entitled to a rest period of not less than 11 consecutive hours in each 24-hour period.
Regulation 11 (implementing article 5), provides that an adult worker is also entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period.
To help employers and workers to gain a better understanding of the regulations, the Department of Trade and Industry published some guidance, which stated that “employers must make sure workers can take their rest, but are not required to make sure they do take their rest”.
What were the basic facts?
Amicus objected to the guidance, arguing that it did not properly implement the directive. It alerted the Commission of the EC, which sent a letter of formal notice to the Government in March 2002 that it had not correctly implemented articles 3 and 5.
Not satisfied with the response to that letter, the commission asked the UK in May 2003 to make the necessary amendments to ensure it was in compliance with the directive, but the UK refused saying that the guidance was consistent with it.
The commission complained to the European Court of Justice that the guidance was likely to encourage a practice of non-compliance with the directive.
What did the Government argue?
The Government argued that, far from encouraging non-compliance with the regulations, the guidance emphasised the duty on employers to ensure that their workers could take the rest periods to which they were entitled.
It said that employers should obviously not behave in a way that would prevent workers from taking the rest, but that the directive could not be interpreted to mean that they had to ensure that workers took them. That obligation, it said, would raise real uncertainties as to the extent of the measures that employers were required to take.
What did the ECJ decide?
The ECJ said that the wording of the directive requires workers to “actually benefit from the daily and weekly periods of rest provided for”. Member states therefore have to guarantee that all the requirements are observed.
As the purpose of the directive was to protect the health and safety of workers, member states that did not ensure that workers were able to exercise their rights were not guaranteeing compliance with either the minimum requirements of articles 3 and 5 or the essential objective of the directive.
And although employers should not be expected to force workers to take their rest periods, guidance telling them that they did not have to was liable to render the rights of workers under the directive meaningless.
It also said that guidance telling employers that they do not have to ensure that workers take their rest periods was incompatible with the objective of that directive, in which minimum rest periods “are considered to be essential for the protection of workers’ health and safety.”
The court therefore concluded that the UK had failed in its obligations under the directive.
It also found that it was in breach of regulation 20(2) – the exception dealing with partly unmeasured working time – but which the UK had already resolved by removing the exception as of 6 April 2006.
Comment
This ruling warns Governments against giving employers a wink and a nod to break their obligations under the WTR. By bringing non-statutory guidance within the scope of European law, the ECJ ensures that the DTI and other Government departments will have to guard against language that is not in full compliance with directives and case law.
An interesting question is whether the same rule will apply to Government agencies, such as ACAS, which issues numerous advisory leaflets to employers.