Barber and others v RJB Mining (High Court, 3 March 1999) IDS Brief 634 April 1999

The Working Time Regulations impose a maximum average working week of 48 hours, calculated over a 17 week period. The limit cannot be exceeded unless individual workers sign an agreement opting out of the protection.

The Barber case concerns how the limit is enforced. The 48 hour average is not one of the provisions which gives individual workers the right to take case to to an employment tribunal if the limit is breached. There is an enforcement mechanism through the Health and Safety Executive which has power to prosecute. But what remedy does the individual worker have if his right is infringed?

Mr Barber and his colleagues were members of NACODS, the pit deputies union, and worked in a pit for RJB Mining. They had worked so many hours since the regulations came into force on 1 October that they would exceed the average of 48 over 17 weeks, whatever hours they worked in the remainder of the period. They refused to sign an opt-out giving up their protection.

The deputies asked the High Court for an order declaring their right not to work any further hours and an injunction restraining the employer from requiring them to do so.
The employers argued that the deputies were not entitled to any remedy - that only the HSE could enforce the limit. Thankfully, the judge rejected this approach. One possibility would have been to decide that an employer who breached the limit in the regulations broke a statutory duty entitling a worker to sue the employer if he or she suffered loss or damage (for example personal injury) as a result. The judge took a different approach.

The judge decided that all contracts of employment for all workers in the UK must be treated as including a requirement that an employee should work no more than an average of 48 hours in a week, calculated over the 17 week period. The legislation has the effect of placing a contractual obligation on the employer not to require an employee to work more than the permitted number of hours.

This means that, as in this case, workers are entitled to a declaration that they cannot be required to work more than the permitted hours and are entitled to contractual remedies if that limit is broken. However, as this case shows, it is most unlikely that a court would grant an injunction to restrain employers from exceeding the hours.