QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
1 Bridge Street West
Manchester M60 9DJ
B e f o r e :
| The Queen (on the application of the
United Road Transport Union)
|- and -
The Secretary of State for Transport
Tim Eicke QC (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 6 July 2012
Crown Copyright ©
Mr Justice Hickinbottom:
Working Time Legislation: General
"1. Every worker has the right to working conditions which respect his or her health, safety and dignity.
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of leave."
By virtue of article 6 of the Treaty of the European Union, those rights have the same legal value as if set out in the Treaties themselves.
"This Directive lays down minimum safety and health requirements for workers."
"… any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway."
Article 20(1) nevertheless requires Member States to "take measures to ensure that such mobile workers are entitled to adequate rest….".
"An employer who fails to comply with any of the relevant requirements shall be guilty of an offence"
"A worker may present a complaint to an employment tribunal that his employer has refused to permit him to exercise any right he has under [the relevant specific working time regulations, including regulations 10(1) and (2), 11(1)-(3)), 12(1) and (4)), 13 and 13A]."
If the tribunal finds that the complaint is well-founded, then it may grant a declaration to that effect and make a just and equitable compensatory award from the employer to the worker (regulation 30(3) and (4)).
Working Time Legislation: Road Transport Workers
"Member States shall lay down rules on penalties applicable to infringements of the Regulation and Council Regulation (EEC) No 3821/85 ('the Tachograph Regulation') and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive and non-discriminatory. No infringement of this Regulation and [the Tachograph Regulation] shall be subjected to more than one penalty or procedure. The Member States shall notify the Commission of these measures and the rules on penalties by [a specified date]…".
i) Obligations are imposed on all commercial drivers to meet the requirements imposed by the Regulation in respect of breaks and rest periods. Although obligations are also imposed on others (such as road transport operators), article 19(3) reflects a general focus on driver responsibility.
ii) Whilst there may be other national means of enforcement, there is a mandatory requirement that those obligations be enforced at a national level by a system of criminal or other form of penalties.
iii) The system of penalties must be "effective", i.e. effective in ensuring compliance with the substantive requirements imposed by the Regulation.
iv) There is a prohibition on any infringement being visited by more than one penalty or procedure.
"Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this directive by 23 March 2005 or shall ensure by that date that the two sides of industry have established the necessary measures by agreement, the Member States being obliged to take any steps to allow them to be able at any time to guarantee the result required by this directive…"
That allows Member States to adopt a wide spectrum of enforcement schemes.
"Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this directive and shall take all the measures necessary to ensure that these penalties are applied. The penalties thus provided for shall be effective, proportional and dissuasive."
Again, it is to be noted that the penalty scheme is mandatory and has to be "effective", i.e. effective in ensuring compliance with the substantive requirements of the Directive.
"(1) No mobile worker or self-employed driver shall work for more than six hours without a break.
(2) Where the working time of a mobile worker or self-employed driver exceeds six hours but does not exceed nine hours, the mobile worker or self-employed driver must take a break lasting at least 30 minutes and interrupting that period.
(3) Where the working time of a mobile worker or self-employed driver exceeds nine hours, the mobile worker or self-employed driver must take a break lasting at least 45 minutes and interrupting that period.
(4) Each break may be made up of separate periods of not less than 15 minutes each.
(5) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that the limits specified are complied with in the case of each mobile worker employed by him.
(6) A self-employed driver must take all reasonable steps, in keeping with the need to protect his health and safety, to comply with the limits specified above"
"(1) In the application of these Regulations, the provisions of the Drivers' Hours Regulation [now succeeded by the Road Transport Regulation] relating to daily and weekly rest shall apply to all mobile workers to whom they do not apply under that Regulation as they apply to other mobile workers and self-employed drivers under that Regulation.
(2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that those provisions are complied with in the case of each mobile worker employed by him, to whom they are applied by paragraph (1).
(3) A self-employed driver must take all reasonable steps, in keeping with the need to protect his health and safety, to ensure that he complies with the provisions applied by paragraph (1)."
"Any person who fails to comply with any of the relevant requirements shall be guilty of an offence"
i) Regulations 7 and 8 found this claim: the Union rely upon rights granted to mobile workers under these provisions, and it is contended on their behalf that it is those rights that, absent a right to bring a civil claim in an employment tribunal, are unequivalently and ineffectively enforced. It is expressly accepted on the Union's behalf that these two regulations faithfully transpose and (save for the issue of available remedy, which is in issue in this claim) implement those parts of both the Road Transport Regulation and the Road Transport Working Time Directive that relate to breaks and rest periods.
ii) Regulations 7 and 8 apply to all drivers of commercial road vehicles, whether employed or self-employed.
iii) An employer has an obligation to ensure that the provisions are complied with in the case of each relevant employee; but regulations 7 and 8 primarily and directly impose obligations upon employed and self-employed mobile road transport workers to meet the requirements for breaks and rest periods.
iv) In the event that workers do not meet the requirements, they commit an offence.
v) Where a failure to meet the requirements results in an employer also being guilty of an offence, the employee remains criminally liable – although, under regulation 18, proceedings may be taken against an employer even if they are not taken against the employed worker.
The Challenged Decision
"Thank you for your letter of 20 September about providing mobile workers covered by the [Road Transport Working Time Regulations] with an avenue of appeal in the employment tribunals in relation to working time matters.
Earlier in the year letters were sent by the previous Government. These indicated that previous Ministers were minded (subject to consultation) to amend legislation to provide for this.
After consideration, I have decided not to proceed with amending the relevant legislation in this way. This is because we now take the view that mobile workers are already able to enforce such rights under the provisions in the Employment Rights Act 1996 that deal with protected disclosures. This also accords with the priority of the Coalition Government to minimise new regulation."
The statutory reference is to the "whistle blowing" provisions of the 1996 Act, to which I shall return in due course.
"Thank you for your letter of 9 November, following our meeting on 13 October, regarding my decision not to amend legislation to provide mobile road transport workers with a specific avenue of appeal in employment tribunals in relation to working time matters.
In your letter you raised a particular concern that the Road Transport (Working Time) Regulations 2005 do not contain an equivalent to regulation 30 of the Working Time Regulations 1998.
I have given this careful consideration and explain below why I remain of the view that amending legislation is not required. Please can I remind you that the Department for Transport does not provide legal advice and this should not be taken such; independent legal advice should be sought if required, and ultimately it is for the Courts to interpret the law.
The Working Time Regulations 1998 ("the 1998 Regulations") implement a particular EU Directive. Regulation 30 of the 1998 Regulations simply allows for compensation to be awarded by an employment tribunal in the event of a complaint with respect to breach of rest, rest breaks or annual leave entitlement being upheld.
The Road Transport (Working Time) Regulations 2005 ("the 2005 Regulations") implement a different EU Directive – namely Council Directive 2002/15/EC. There is no specific requirement in this Directive for mobile workers to be paid compensation in the event of there being a breach of rest, rest breaks, or annual leave entitlement, and there is no reason why the 2005 Regulations should include exactly the same provisions as the 1998 Regulations.
Directive 2002/15/EC requires penalties for breaches of national provisions adopted pursuant to the Directive to be "effective, proportional and dissuasive". The Department considers that this has been given effect by providing enforcement powers to the Vehicle and Operator Services Agency (VOSA).
As I previously explained, the Department considers that mobile workers are able to uphold the rights afforded to them under Directive 2002/15/EC – in employment tribunals if necessary. In keeping with this the Department takes the view that mobile workers who assert their right to rest, breaks or annual leave could ultimately rely on the protected disclosure provisions in the Employment Rights Act 1996, in the event of being dismissed or suffering some other detriment for asserting those rights."
The Grounds of Challenge
"… [A]ccording to settled case law, in the absence of relevant Community rules, it is for the national legal order of each member state to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness)…" (emphasis added).
In short, enforcement is a matter for the national government, provided that the means of enforcement adopted are equivalent and effective.
"… [T]he essential reason for the development of the principle was that a Community law right should not suffer disadvantageous treatment vis-à-vis national rights which lie outside the field of Community law."
Levez makes clear that that remains the rationale for the principle of equivalence: it is to prevent a European law right being treated – in procedural terms – less favourably than a comparable domestic law right to the disadvantage of European law and those relying on it.
"The principle of equivalence requires that the [procedural] rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar…".
The court used similar phraseology in the recent case of Case C-177/10 Santana v Consejeria de Justitia y Administración Pública de la Junta de Andalucia (8 September 2011), at paragraph 90, to which I was also referred.
"In order to determine whether the principle of equivalence has been complied with in the present case, the national court… must consider both the purpose and the essential characteristics of allegedly similar domestic actions…" (emphasis added).
Similar phraseology was used in Santana (later in paragraph 90).
"50. If, under Articles 10 and 12 of Directive 92/85 and to comply with the requirements established by the case-law of the Court on the issue of sanctions, a Member State chooses to sanction the failure to respect obligations arising under Article 10 by granting a fixed amount of pecuniary damages, it follows, as the Italian Government pointed out in the present case, that the measure chosen by the Member State, in the case of infringement, in identical circumstances, of the prohibition on discrimination under Articles 2(1) and 5(1) of Directive 76/207 must be at least equivalent to that amount.
51. If the compensation chosen by a Member State under Article 12 of Directive 92/85 is judged necessary to protect the relevant workers, it is difficult to understand how a reduced level of compensation adopted to comply with Article 6 of Directive 76/207 could be deemed adequate for the injury suffered if the injury was brought about by a dismissal in identical circumstances and contrary to Articles 2(1) and 5(1) of that latter directive.
52. Moreover, as the Court has already stated, in choosing the appropriate solution for guaranteeing that the objective of Directive 76/207 is attained, the Member States must ensure that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those application to infringements of domestic law of a similar nature and importance (Case 68/88 Commission v Greece  ECR 2965, paragraph 24, and Case C-180/95 Draehmpaehil  ECR I-2195, paragraph 29). That reasoning applies mutatis mutandis to infringements of Community law of a similar nature and importance."
He drew particular attention to paragraph 52 which, he submitted, can only be a reference to the principle of equivalence. The judgment continues:
"53. It is therefore necessary to reply to the second part of the second question that, since a decision to dismiss on the grounds of pregnancy and/or the birth of a child, notified after the end of the period of protection set down in Article 10 of Directive 92/85, is contrary both to that provision of Directive 92/85 and to Articles 2(1) and 5(1) of Directive 76/207, the measure chosen by a Member State under Article 6 of that latter directive to sanction the infringement of those provisions must be at least equivalent to the sanction set down in national law implementing Articles 10 and 12 of Directive 92/85.
54. Having regard to the above, the reply to the second question must be that a decision to dismiss on the grounds of pregnancy and/or the birth of a child is contrary to Articles 2(1) and 5(1) of Directive 76/207 irrespective of the moment when that decision to dismiss is notified and even if it is notified after the end of the period of protection set down in Article 10 of Directive 92/85. Since such a decision to dismiss is contrary to both Article 10 of Directive 92/85 and Articles 2(1) and 5(1) of Directive 76/207, the measure chosen by a Member State under Article 6 of that latter directive to sanction the infringement of those provisions must be at least equivalent to the sanction set down in national law implementing Articles 10 and 12 of Directive 92/85."
"The court held, in paragraphs 53-54, that to be regarded as effective in that sense the sanctions provided by Belgian law for conduct inconsistent with Directive 1976/207 must be at least as effective as the sanctions provided by Belgian law for conduct inconsistent with Directive 1992/85."
But that was because such a remedy would have to be available for the effective transposition of Directive 76/207 into the domestic law of Belgium, not because of the principle of equivalence. It was also, in Buxton LJ's view:
"… a matter of simple common sense, granted that the [same] conduct complained of had been found to be in breach of both of those Directives."
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article"
Those conditions relate to a fair trial, and the opportunity for being advised, defended and represented, which themselves reflect article 6 of the European Convention on Human Rights. The rights in the Charter are recognised as being of the same value as the Treaties (article 6(1) of the Treaty on European Union); and the rights in the Convention constitute general principles of the law of the European Union (article 6(3) of the Treaty on the European Union).
i) Mr Hendy submitted that both the Road Transport Regulation and the Road Transport Working Time Directive required other relevant remedies, over and above the envisaged system of penalties. However, that is not so: the Regulation and Directive certainly allow such additional remedies, but none of their language requires more than the mandatory system of penalties. Indeed, that language suggests that a system of penalties may well be sufficient. For example, both require a system of penalties that is "effective" (article 19 of the Road Transport Regulation, and article 11 of the Road Transport Working Time Directive); and no infringement of the Regulation can be subject to "more than one penalty or procedure" (article 19 of the Regulation). That language may not be determinative; but it is strongly suggestive that the envisaged system of penalties might be sufficient to be effective. It is certainly not language that requires remedies additional to that system.
ii) For the reasons given above, I do not consider that the Road Transport Regulation gives rights to mobile transport workers, such as drivers. Rather, it imposes obligations upon them. The Road Transport Regulations, upon which the Union relies, are not made pursuant to the Regulation, but purportedly made to implement the Road Transport Working Time Directive.
iii) It is a more difficult question as to whether that Directive gives rights to mobile workers. Whilst article 31 of the Charter of Fundamental Rights which puts the limitation on working hours etc for all workers firmly on the basis of a worker's right, and article 20 of the General Working Time Directive requires Member States to take measures to ensure that such mobile workers are entitled to adequate rest as of right, as I have explained, the Road Transport Directive is not written in the language of workers' rights, as is the General Working Time Directive. In the context of the scheme for road transport in the Regulation and Directive viewed together, any rights granted to mobile transport workers appear to be, at best, weak rights when compared with the primary purposes of the regime.
iv) Those primary purposes are concerned with the organisation of road transport (including ensuring competition between various modes of inland transport), and road safety. It is unsurprising that the Road Transport Regulation and the Road Transport Working Time Directive both consider that the essential means of enforcing the requirements in the light of those purposes is by means of a national system of penalties, aimed directly at drivers, supplemented by a system of inspection and notices. That penalty system is required to be "effective" in enforcing the relevant requirements.
v) The Secretary of State, through VOSA, is responsible for those systems. As a matter of law, if the Secretary of State or VOSA fail in their obligations effectively to enforce the requirements, then they are amenable to judicial review.
vi) Furthermore, as a matter of law, drivers cannot be required to work in contravention of the relevant requirements for breaks and rests: Mr Eicke submitted that to require them to work would be a breach of an implied term of their employment contract (that they would not be required to work in an illegal manner), and if they were dismissed or otherwise disadvantaged by refusing to work in such a manner then they would be entitled to the protection of the whistle-blower provisions of Part IVA of the Employment Rights Act 1996, and would have a right to bring a claim in an employment tribunal under the protective provisions of sections 47B and 48(1A) of that Act (Ross v Eddie Stobart Ltd (2011) UKEAT/0085/10/CEA).
vii) Given the obligations imposed upon mobile road transport workers in terms of breaks and rest periods – and their enforceability through the criminal justice system – it is difficult to envisage circumstances in which a worker would have a civil claim against his employer, other than where he himself (the worker) would be guilty of an offence for infringement. That is materially different from the scheme that applies to general workers, through the Working Time Regulations. It is unsurprising that the relevant regulations do not introduce or envisage a right of claim that could only be exercisable in practice by an employee on the basis of his own criminal act.
viii) Those are matters of law. In respect of effectiveness in fact, the Union have not submitted any evidence that the system of enforcement of the provisions relating to breaks and rest periods under the Road Transport Working Time Regulations are not effective. Indeed, the limited evidence that there is suggests the contrary. The First Report from the Commission on the Implementation of the Working Time Rules relating to Road Transport dated 3 August 2009 does not suggest that, in transposing the Directive, any Member State has adopted a procedure for a civil claim. Whilst the number of Member States that responded to the request for information as to the establishment of systems to check for the effectiveness of enforcement was small, the United Kingdom (together with four other Member States) did so; and there is no suggestion in the report that the VOSA system adopted in the United Kingdom was not effective, for want of a civil remedy or otherwise. In proposals for amending the Directive, it has not been suggested that a right to claim by individual action against an employer is necessary, or indeed that the system of penalties at the heart of the enforcement regime in ineffective in the United Kingdom. There is no evidence before me that a single mobile road transport worker has worked in breach of the requirements of the Road Transport Working Time Regulations at the behest or even with the knowledge of his employer; and certainly no evidence of a worker doing so who would not have so worked if he had had a right to claim against his employer.
ix) In terms of authorities, Mr Hendy relied heavily upon the European Court case of Antonio Muñoz y Chia SA v Frumar Ltd  ECR I-7312, which concerned the proper interpretation of two Regulations (Regulation (EEC) No 1035/72 and Council Regulation (EC) No 2200/96) concerning the common organisation of the market in fruit and vegetables. In the United Kingdom, the Horticultural and Agricultural Act 1964 imposed penalties for the sale of produce in breach of European standards, and the Horticultural Marketing Inspectorate was empowered to make checks. The applicant sought an order restraining the respondents from marketing table grapes in the United Kingdom. The European Court held (at paragraph 31) that the specific obligations in the Directive not to display goods that did not comply with European standards:"… imply that it must be possible to enforce that obligation by means of civil proceedings instituted by a trader against a competitor".Mr Hendy submitted that Muñoz is, at the very least, informative in relation to this case; because the system of enforcement in that case, via an inspection agency within the relevant Government department, mirrors the VOSA system in this case.
x) However, I consider that case of limited value in the different context of the road transport scheme for working hours. The right to enforce by individual civil action was implied in that case by reference to the terms of the substantive obligations, in the context of the scheme as a whole including its purpose. The implication of such rights must necessarily be scheme specific: whether the imperative for individual workers to be able to enforce their rights can be implied into a scheme must depend upon the nature of that scheme, looked at as a whole. The differences between the scheme in Muñoz and the scheme of the Road Transport Directive are many. The circumstances of the relevant European measures are clearly different: they have different purposes, and seek to attain those purposes in different ways. In particular, the system of enforcement by way VOSA inspections etc and of penalties is peculiarly comprehensive; and the relationship between the respective parties are significantly different. In Muñoz, the parties were trading competitors, in this case they are contractually bound as employer and employee, in circumstances in which the employee could not bring an civil claim except in circumstances in which he himself would be in breach of the relevant European obligations and liable to a penalty for the same. I do not derive any significant assistance from Muñoz.