Gibson v East Riding of Yorkshire Council (EAT, 5 February 1999)
Cawley v Hammersmith Hospitals NHS Trust (EAT, 21 January 1999)
SIMAP v Conselleria de Sandid y Consumo de la Generalitat Valencia (reference to ECJ)
R v Secretary of State for Trade and Industry ex parte BECTU (hearing date 13 April 1999)
The first UK case law under the Working Time laws is starting to emerge. The first decision of significance is a UNISON case which arises from the delay in implementing the Directive, attributable primarily to the actions of the last Conservative government.
The Directive should have been implemented by 23 November 1996, but the necessary legislation was not in place until the Working Time Regulations came into force on 1 October 1998.
This meant that UK workers were deprived of their rights for nearly two years. The question was: did workers have any remedy for this?
The EAT has answered with a resounding "yes", as far as the annual leave provisions of the Directive are concerned. These provisions are contained in Article 7, which states that EU governments shall:
"Take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation or practice."
The EAT had to consider whether this granted a right which was sufficiently precise and unconditional that it could be relied on by public sector workers to enforce the right against employers who were "emanations of the state", in this case a local authority.
The answer was that the Article was clear and precise and allowed for no ambiguity or uncertainty. This meant that Mrs Gibson, who was a contract swimming instructor employed by the council, was entitled to four weeks' paid leave for the two years between October 1996 and 1998. As she had taken unpaid leave, she will be entitled to compensation for the pay she should have received.
This decision means that other public sector workers who received no paid leave and instead took unpaid leave over that period should be able to claim back pay. Most public sector workers will have received paid leave, so the decision is most likely to be of benefit to contract workers like Mrs Gibson and casual or temporary staff who may have been deprived of the right.
The entitlement is to four weeks' annual leave for the two years, as the UK's option to take advantage of the transitional provision limiting leave to three weeks only applies from 1 October 1998 until 23 November 1999.
The decision may also have wider implications for the possible direct effect of other
provisions of the Directive.
Although the decision is confined to the annual leave provisions, the EAT said that Article 7 could only have direct effect after taking into account the totality of the Directive and considering the particular article in that context. This lead to the conclusion that:
"The structure of the Directive is consistent with it having direct effect. It is designed to require Member States to confer minimum rights in a way which can be said to be unconditional."
This may help the process of establishing that other parts of the Directive have direct effect, although it will still be necessary to show that the particular provision is itself clear, precise and unconditional.
The EAT was asked to consider this in Cawley in relation to the provisions on daily rest and night work (Articles 3 and 8). It did not decide the issue as it found against the employees on other grounds, but made the observation that the arguments on the direct effect of these articles were "more neatly balanced".
This observation was influenced by a point raised in the case of SIMAP which has been referred by a Spanish Court to the European Court of Justice.
One of the issues to be considered in that case is the interpretation of the definition of working time. This says that working time is where a person is "working, at the employer's disposal and carrying out his activity or duties".
The UK Government believes that all three limbs of the test must be satisfied for time to count as working time, so that for example it is not enough merely to be "at the employer's disposal". The European Court is being asked to decide if this is correct. The EAT in Cawley thought that the Directive was "patently ambiguous" on this point. If the conclusion contradicts the view of the UK Government it will greatly extend the scope of working time and have profound effect on, for example, the treatment of time spent "on call".
There is a direct challenge to the Government's interpretation and implementation of the Directive on another point, once again related to annual leave.
BECTU is challenging the provision in Regulation 13 (7) of the Working Time Regulations which says that a worker does not qualify for any entitlement to paid annual leave until she or he has worked for the employer for a continuous period of thirteen weeks.
This means that those who are employed on a series of fixed term contracts of less than thirteen weeks with gaps of more than one week in between will never acquire a right to paid holiday. This may apply, for example, to people who work only during school terms.
BECTU says this conflicts with the requirement in Article 7 that "every worker" is entitled to paid leave. The Government says it is can restrict the right in this way as a "condition for entitlement" within Article 7. The judicial review on this point will begin on 13 April 1999.