Time's up for the UK

There is no doubt about the main legal issue at the end of 1996 - the Working Time Directive. On 12 November the European Court of Justice gave its judgment in a case brought by the UK government seeking to get the Directive declared void.

The deadline for implementing the Directive was 23 November 1996, three years after it was adopted. In this issue we look at the provisions of the Directive and the implications for employees and unions - in the public and private sector - from 23 November. But first we focus on the judgment itself.

The issue for the court to decide was whether the Working Time Directive was a health and safety measure. The Directive was first put forward by the European Commission in September 1990. It was adopted by the Council of Ministers, representing European national governments, on 23 November 1993.

The UK government had persuaded the other countries to dilute a number of provisions contained in the original draft, but then abstained when the Directive was put to the vote. The Directive was passed because health and safety measures require only a majority vote. The UK brought proceedings in the ECJ arguing that the Directive related to employment rights and therefore needed a unanimous vote.

The ECJ rejected the UK's arguments. It confirmed the concerns of UK employers that, if the Government challenged the legal basis of the Directive, the court would confirm a wide definition of health and safety which gives potential for further measures to be adopted to protect European workers.

The court adopted the definition of health accepted by the World Health Organisation. The WHO describes health as a state of complete physical, mental and social well-being and not simply a question of not being injured or ill. This means taking a broad view of what is the 'working environment', embracing all factors affecting health and safety in employment, not merely exposure to dangerous procedures or hazardous substances.

Where a Directive concerns health and safety in this broad context, the majority voting procedure must be used, even where the measure may have knock-on effects on employment rights and businesses. The ECJ emphasised that 'safety, hygiene and health at work is an objective which should not be subjected to purely economic considerations'.

The ECJ rejected the argument that health and safety legislation could only be passed when the need for laws was supported by scientific evidence. Once the European Union has decided it is necessary to improve the existing level of protection of health and safety and harmonise conditions across Europe, it is appropriate to do so by laws which establish minimum requirements, enabling individual countries to adopt stronger laws if they wish. Minimum requirements do not mean that a Directive must be set at the lowest level of protection in the least regulated EU country.

The UK achieved one victory. The ECJ said there was no health and safety reason why the weekly rest period should include Sunday. This part of the Directive is now deleted so workers will not be protected if they refuse to work on Sundays, unless they are shop or betting workers protected by Part IV of the Employment Rights Act.

The reaction to the judgment has ranged from one extreme to another: either it represents the death-knell of the UK economy or it will have virtually no effect on employees or businesses. Neither is true. The Directive will have an immediate impact for many workers and the judgment has long-term implications for legislation on workplace rights at European level.