This article, written for HR professionals, suggests that there has been rather an over-reaction to the recent European Court decision on the Working Time Directive.
If you are concerned about the latest European Court of Justice (“ECJ”) decision relating to the Working Time Directive (the Directive) – European Commission v United Kingdom (Case C-484/04, 7 September 2006) – I am not surprised. The TUC stated: “Employers will now have to do their utmost to ensure their staff get the breaks they are entitled to”. The Federation of Small Businesses is worried the decision forces workers to take statutory rest breaks even if they do not want to. A Tory MEP said “This is a kick in the teeth for British workers who may want to work longer hours to pay for extra bills or family holidays”. It has also been suggested that the decision will lead to many more employment tribunal claims. Surely such an amount of sound and fury must signify something?
The Directive requires the UK to have laws entitling workers to 11 consecutive hours of time off work every day, to one full day off work every week (or two a fortnight) and to a 20-minute rest break every six hours. The Working Time Regulations (the Regulations), by which the Directive was implemented in the UK, do exactly this. In that respect, the European Commission had no problem with the Regulations.
As an important aside, it should be borne in mind that the UK’s ‘opt-out’ from the Directive, under which workers may agree in writing to work longer hours than the Directive ordinarily permits, relates only to the 48-hour maximum working week. It has never been permissible to opt out of the right to rest breaks, to one day off a week and to a maximum thirteen-hour working day.
The Commission’s beef was with the following part of the guidance issued by the DTI on the Regulations: “employers must make sure that workers can take their rest, but are not required to make sure they do take their rest”. The Commission submitted, and the ECJ agreed, that the guidelines “endorse and encourage a practice of non-compliance with the Requirements of [the Directive]” and “are clearly liable to render the rights enshrined in [the Directive] meaningless and are 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”.
So, must employers now make employees go home when they want to work late? The short answer is no. The ECJ stated that the Directive “should not, as a general rule, extend to requiring the employer to force his workers to claim the rest periods due to them. The employer’s responsibility concerning observance of the rest period provided for by that directive cannot be without limits”.
Reading between the lines
What seems to have been of concern to the Commission and to the ECJ was not so much the wording of the guidance as the perceived attitude of the UK Government to the Directive, evidenced by that guidance. As above, the guidance merely stated that employers are not “required to make sure [workers] do take their rest”. I think “make sure they do” is virtually synonymous with “force them to” and the ECJ emphasised that the Directive does not require employers to force workers to do anything. The reason the UK Government lost the case was that the ECJ believed the guidance tacitly let “it be understood that, while they cannot prevent … rest periods from being taken by the workers, [employers] are under no obligation to ensure that [workers] are actually able to exercise such a right”. In other words, the ECJ considered that what the DTI guidance was implicitly saying was something like “employers must not stop workers from taking their rest, but are not required to make sure they are able to take their rest”.
Are we going to be sued?
There is a further important point that is often lost when discussing the burden of regulation on employers - enforcement. It has to be asked whether, in light of the ECJ decision, any employer is going to face a single employment tribunal claim or criminal health and safety prosecution that it might not otherwise have done.
So far as concerns employment tribunal claims, nothing has changed. Workers continue to have the right to bring a claim on the basis that their employers have refused to permit them to exercise Working Time rights or have dismissed them or subjected them to some other form of detriment because they exercised or sought to exercise those rights. But neither the Directive nor the Regulations enable workers to make a claim on the basis that their employers failed to take all reasonable steps to ensure that they took rest breaks or days off. Employers with a ‘long hours culture’ remain at risk of stress claims but no more so than in the past.
Criminal prosecutions for breaches of the Regulations are brought by the Health and Safety Executive (HSE). While I would not want to encourage complacency in relation to potential criminal liability, it is doubtful, to put it mildly, that the HSE is suddenly going to start prosecuting employers for taking insufficient steps to make their workers take rest days and breaks. In so far as the HSE is at all interested in bringing Working Time prosecutions, this is surely for clear and gross breaches of the Regulations – where workers have been forced to work ridiculous hours and prevented from taking breaks for example – and not in cases where workers are free to exercise their rights but choose not to.
In summary, then, the law has not changed and employers need be no more worried about the Working Time Regulations than they were before the ECJ decision. Whatever the DTI’s new guidance on the Regulations is going to say, it is very unlikely to be that employers must force unwilling employees to work shorter hours. However, employers are obliged – as they always have been – to make sure that their workforce is, in practice, actually able to take rest days and breaks. Employers concerned about the issue might also consider issuing to employees a policy document to the effect that although the employer is not in the business of forcing people to exercise their rights, they should take the breaks and so on to which they are entitled, in the interests of their own health.
This article was first published on the Consult GEE Legal Human Resources website and is reproduced here with permission.