R v Attorney General for Northern Ireland ex parte Burns [1999] IRLR 315
The Working Time Regulations have produced a wave of court decisions, illustrating the breadth of the legislation, but also its limitations.
We have already had a reference to the European Court on the qualifying period for holiday entitlement (R v Secretary of State ex parte BECTU, see Issue 34 of LELR), a finding that the annual leave provisions in the Directive have direct effect (Gibson v East Riding of Yorkshire) and a ruling that the maximum weekly working time limit is an implied term of every contract of employment (Barber v RJB Mining, Issue 33 of LELR).
The latest case comes from Northern Ireland. It deals with the definition of night worker, but also with the Government's liability for the failure to introduce Regulations within the time limit required by the Directive.
Shift work and health problems
Mrs Burns was required to work a three-shift system. Every third week she had to work from 9pm until 7am. She had regularly complained about this on health grounds since first required to work the shift in 1992.
In February 1997, she wrote to her employer saying she wanted to terminate her employment on medical advice. A few days later she tried to withdraw her resignation, asking for a transfer to day work on health grounds. Her employers refused. Mrs Burns complained that she was entitled to protection as a "night worker" under the Directive and was therefore entitled to a transfer to day work on health grounds. She took the Government to court saying that its failure to implement the legislation by November 1996, as required by the Directive, meant that she had been deprived of a legal remedy.
Night worker
The first issue was whether Mrs Burns was a night worker. She spent one week of each three week cycle working from 9pm until 7am, Monday to Friday.
A night worker is defined in the Directive as a person who "works at least three hours of [her] daily working time at night as a normal course". Night time is defined as a period of at least seven hours which must include the core hours of midnight to 5am. The UK has since adopted the period of 11pm to 6am, but this was not in force at the time of this case.
There was no doubt that when Mrs Burns worked a shift from 9pm until 7am she worked at least three hours at night. The question was whether she did so "as a normal course".
The Government's Guidance on the Working Time Regulations issued in October 1998 by the DTI says that those who work night shifts as part of a regular pattern satisfy this definition. However, the Government argued a contrary view in this case. It tried to persuade the court that the proportion of Mrs Burns' night work was so small that she did not qualify for protection under the Directive.
The judge rejected this. He said that working three hours at night "as a normal course" involves no more than that "this should be a regular feature of her employment". It is not confined to someone who works night shifts exclusively or even predominantly. This means that all those who work a shift including three hours at night time as part of a regular shift pattern will be classed as night workers.
Remedy
The judge said that the Government was legally liable for its failure to introduce working time laws in the UK by the deadline of November 1996. It could not use as an excuse for delay the Conservative government's unsuccessful challenge in the European Court. Any failure to implement on time means a government is liable.
This, however, was not enough to secure success for Mrs Burns. The judge concluded that the medical and other evidence did not show that she would have been able to require her employer to transfer her to day work and would have kept her job. Her claim for compensation failed.
A claim for compensation may have succeeded if there had been the necessary evidence in support. However, the provisions in the Working Time Regulations 1998 on transfer to day work do contain a number of difficulties, not least the fact that enforcement is supposed to be through the Health and Safety Executive rather than Tribunal claims. A worker whose doctor says she is suffering from health problems connected with night work is far from knowing that the law will secure a transfer to suitable day work.