United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T LINDEN (of Counsel) Instructed By: Mr D C Cockburn Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA
For the Respondents	MR D BROWN (of Counsel) Instructed By: Mr N Chubb Messrs Chapman & Chubb Solicitors 149-151 Nottingham Road Somercotes Alfreton Derbyshire DE55 4JH


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This appeal raises a short point of construction. The three Appellants are all clerical workers employed in connection with road transport. Are they to be denied the annual leave to which workers generally are entitled under Regulation 13 of the Working Time Regulations 1998 by reason of their being in the road transport sector of activity excluded from the benefit of Regulation 13 by Regulation 18?
2. The Employment Tribunal - Miss R. A. Lester sitting alone at Ashford - by her judgment sent to the parties on the 31st March 1999 decided that the three Appellants were on that account denied the benefit of Regulation 13. By their Notice of Appeal of the 7th May the Appellants, appearing by Mr Linden (who did not appear below), challenge that construction. On behalf of the Respondent employers, Tuffnells Parcels Express Ltd ("Tuffnells"), Mr Brown defends it.
3. Tuffnells were held by the Tribunal to operate a major parcel delivery service, with some 21 depôts in various parts of the country, delivering goods by road. At Tuffnells' premises the Appellant Mrs Bowden works part-time as a "batcher", receiving and sorting consignment notes in an office above a loading bay. Mrs Chapman and Mrs Doyle are part-time data-entry clerks, putting information into the computer when consignment notes come in after they have been batched. Their full-time colleagues have paid holidays but these 3 have no contractual entitlement to paid holidays. They can if they choose take unpaid ones. The Tribunal described their work as follows:-

"They work in the offices upstairs at the depôt, above the loading bays and areas where the delivery vans come and go. As they cannot do their work until the vans have arrived and the drivers have delivered their consignment notes, they work from 5 p.m. or 5.30 p.m. and, if necessary, they stay longer than their agreed hours in order to finish the work. If they work longer than their contractual hours they receive overtime pay. The van drivers are not allowed into the offices, and the Applicants have no contact with the vans or other transport and cannot contractually be required to work with the actual transport. On hearing that legal entitlement to paid holidays was to be introduced by law, the Applicants made enquiries of the Respondent in October 1998 and were told that they were not entitled to holiday pay".

4. With that background we turn to the legislation first, going to the domestic provisions of the Working Time Regulations 1998 which came into force on the 1st October 1998. There is no contest but that all three Appellants are "workers" within the meaning of Regulation 2. The Working Time Regulations have an interpretation provision, Regulation 2, which provides:-

"In the absence of a definition in these Regulations, words and expressions used in particular provisions which are also used in corresponding provisions of the Working Time Directive or the Young Workers Directive have the same meaning as they have in those corresponding provisions".

Regulation 13 is headed "Entitlement to Annual Leave" and, so far as relevant, provides as follows:-

"(1) Subject to paragraphs (5) and (7), a worker is entitled in each leave year to a period of leave determined in accordance with paragraph (2).

(2) The period of leave to which a worker is entitled under paragraph (1) is -

(a) ...........

(b) ...........

(c) in any leave year beginning after the 23rd November 1999, four weeks.

(3) ...........

(4) ...........

(5) ...........

(6) ...........

(7) The entitlement conferred by paragraph (1) does not arise until a worker has been continuously employed for thirteen weeks.

(8) For the purposes of paragraph (7), a worker has been continuously employed for thirteen weeks if his relations with his employer have been governed by a contract during the whole or part of each of those weeks.

(9) ...........".

There is no question but that paragraphs (7) and (8) above are satisfied in the cases before us. In the Regulations one then comes on to Part 3 which is given the title "Exceptions". Regulation 18, headed "Excluded Sectors" provides as follows:-

"Regulations ..... 13 .... do not apply -

(a) To the following sectors of activity -

(i) Air, rail, road, sea, inland waterways and lake transport;

(ii) Sea fishing;

(iii) Other work at sea; or

(b) To the activities of doctors in training, or

(c) Where characteristics peculiar to certain services such as the armed forces or the police or to certain specific activities in the civil protection services, inevitably conflict with the provisions of these regulations".

Regulation 21 makes provision to disapply a number of Regulations (but not Regulation 13) in several special cases there identified. We shall need to return to both Regulations 18 and 21 in more detail but, moving on through the Regulations, Regulation 13 is enforceable by way of complaint to the Employment Tribunal - see Regulation 30 (1) (a) (i). There is a time-limit imposed by Regulation 30 (2) but it is not said to have been infringed in the case before us. If the Tribunal finds a complaint well-founded it may so declare and also may award compensation - Regulation 30 (3) and (4). There are restrictions as to contracting-out but they are not here in issue - see Regulation 35.

5. We shall in the first place look only at the relevant legislation as opposed to material which is not legislation properly-so-called. We return to the provisions of Regulation 18. What are excepted in Regulation 18 (a) are "sectors of activity". It is a curious exception because Regulation 13 confers rights on individuals - workers - and so one might expect any exceptions to refer to classes of workers, as is the case in, for example, Regulation 19 (workers employed as domestic servants) and in Regulation 21 (other special cases). If one has to translate the exception of "sectors of activity" to fit the generality from which the exception is to be made then one has to read the exception as if referring to workers in the described "sectors of activity".
6. What, then, is a "sector of activity"? It is not a term within those defined in Regulation 2 and thus our domestic provisions require us to look to see if there is a corresponding provision in the Working Time Directive namely 93/104/EEC, which we shall call the "WTD" . We were not referred to the Young Workers' Directive (94/33 EC). In the WTD, as Article 1 (3) we find:-

"(3) This directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 7 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training;"

That reference to Council Directive 89/391/EEC takes one to Article 2 thereof which provides:-

"This Directive shall apply to all sectors of activity, both public and private (industrial, agriculture, commercial, administrative, service, educational, cultural, leisure, etc.)".

It seems to us that a division as is contemplated in the WTD into sectors such as air or road transport is a different type of categorisation than is seen in Directive 89/391, which is at a higher level of abstraction (industrial, agricultural etc.) and where, moreover, the categories are not necessarily mutually exclusive in the sense that, if applied to an individual, it could leave him, surely, in more than one category (for example an administrator in industry or an educator in the cultural sector). This is confusing. The requirement in Regulation 2 that in construing our domestic provisions we should look to corresponding provisions in the WTD leaves us without the illumination we had expected. Nor is our search for clarity assisted by the preamble to the WTD which, at paragraph 16, states:-

"Whereas, given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors or activities which are excluded from the scope of this Directive;"

That suggests that whatever separate measures may prove necessary (but which, it would seem, were not contemplated as already contained within the WTD) would be defined by reference to "the specific nature of the work concerned" and that they would apply (with our emphasis) to "certain sectors or activities which are excluded from the scope of this Directive". Yet the exclusions in Article 1 (3) in the Directive are, so far as concerns transport, not then of a sector or an activity but of a hybrid, a "sector of activity". At this point, having referred, as required by Regulation 2, to the WTD for guidance as to the necessary meaning of the phrase we find none and so we return to the domestic legislation to see what we can glean there as to the legislative intendment.

7. Looking at the language of Regulation 18 one sees that it speaks, inter alios, of the sector of activity of road transport. It does not divide further as, for example, into the transport of goods or of passengers, or public or private road transport, or between local, national or international road transport. A broad view of what is the sector of activity would seem to have been intended. Further, the phrase "sector of activity" may be thought to point to organisation being a factor in the definition more than would be necessary if merely "activity" was referred to. Thus, for example, a man who drives a delivery van for a grocer might, looking merely to his activity, be thought to be in the transport sector, but when the organisation in which he worked was taken into account, he might then be thought to be in the food rather than in the transport sector of activity. The fact that activity alone is the description for the excepted class in Regulation 18 (b) ("the activities of doctors in training") also suggests that a different meaning is intended for "sectors of activity" than would be appropriate to the word "activity" on its own.
8. Does a search for the mischief intended to be met by the exceptions throw any light on the subject? One might have thought for example, that a factor common to most of the excepted sectors of activity was that they were such that in some cases an unrested worker in them who was unhealthy or weary - an over-tired airline pilot, ferry captain or lorry driver - was peculiarly able to cause damage to himself and others. That would lead one to expect that the exception from the WTD would have been coupled with some especially detailed provisions relating to such excepted classes. However none is found and that cannot therefore have been the mischief in mind. Moreover, had that been the mischief contemplated then, why would Regulation 18 (b) have referred only to doctors in training? Would not doctors who had completed their training be as susceptible, if over-tired to the point of distraction, to harming patients or failing to cure them? There is no ground for believing that some especial ability to harm themselves or the public is a mischief or the mischief aimed at by the exclusion which is Regulation 18. Such special cases as those are generally specifically provided for by such highly specific provisions as those introducing, for example, lorry tachometers. Later developments which we shall come on to suggest that the intended common factor amongst the excepted classes may well have been the likelihood of some of the workers in those classes frequently working away from home, but the WTD, having excepted them, fails to go on to make special provision for them either. It cannot, therefore, have been the intention of the legislation to create exceptions in order there and then to make immediate but special provision for the excepted classes. Indeed, it is not possible to find an appropriate mischief of such a kind other than, by reference to the preamble in the WTD, that it was foreseen later that "it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors or activities". If the relevant purpose was merely, as that would suggest, that the draftsman and legislature left to the future, on a "wait and see" basis, the question of whether separate measures proved to be necessary for the particular areas excepted (and we can see no other) then that throws no useful light on the construction of Regulation 18.
9. Do the other provisions of the Regulations assist in the construction of Regulation 18? We have mentioned that as to certain workers Regulation 21 disapplied some provisions (but not the annual leave provisions of Regulation 13). Amongst the examples in Regulation 21 are:-

"(c) Where the workers' activities involve the need for continuity of service or production, as may be the case in relation to -

(i) Services relating to the reception, treatment or care provided by hospitals or similar establishments, residential institutions and prisons;

(ii) Work at docks or airports;"

Surely, asks Mr Linden, if the exclusion in Regulation 18 of the air and sea transport sectors of activity were intended to exclude all workers within those sectors without regard to the type of activity he or she was engaged in, then there would have been no need for a particular subsequent exclusion for persons working at docks or airports? Perhaps, too, if there was a disapplication to the whole of the activities of doctors in training in Regulation 18 there would need to have been some qualification to Regulation 21 (c) (i) to take out of it the doctors in training already excluded by Regulation 18. Does this not point, runs the argument, to the transport sectors of activity and hence the road transport sector of activity needing to be more narrowly construed rather than reading it so as to exclude all the workers in the sector without regard to his or her particular activity?

10. There would be force in this argument if one could not postulate workers at docks or airports who were, despite that, outside the respective sea and air transport sectors of activity. However, a construction worker, for example, engaged in building or dismantling docks or airport facilities could in appropriate circumstances fall within Regulation 21 (c) (ii) and yet, by reason, in particular, of the organisation of which he formed part (a construction or demolition company) be outside the ordinary meaning of the transport sector of activity. On balance, therefore, we do not find Regulation 21 to throw any real light on Regulation 18 save, if anything, to underline that the term "sector of activity" includes within it a component relating to the organisation of the worker as opposed merely to the activity he carries on.
11. Looking thus far merely to the relevant legislation, domestic or European, we have to note that it would have been possible, even if not easy, for the Regulations or the Directive to have made provisions to exclude clerical or administrative staff within a certain sector of activity or those within the sector who were not required to work away from home but no such exclusion is to be found either in the domestic or the European legislation. Alternatively the exclusion could have not been of sectors of activity but only of those, in whatever sector, habitually required to work away from home, if that was the class that it was in mind to except. In the absence of any such provision we have so far been unable to detect anything to cut down the reference to the road transport sector of activity so as to mean anything less than the whole broad undivided sector of activity of that description. In turn we have found nothing so far to enable us to disapply the exception to any particular class or classes of workers who work within that broad and undivided sector of activity.
12. Mr Linden advances attractive arguments that exceptions and derogations should be narrowly construed and that it is possible to look at a sector of activity but then to divide it into "activity" (clerical work) and the "sector" (road transport). However, the blunt language of Article 1.3 does not admit of broad or narrow construction but simply of construction and no warrant appears for sub-dividing by reference to activities within a given sector. Nor does an invitation to a purposive construction assist where the creation of the exception is not clearly less the purpose of the legislature than any other purpose.
13. We would thus far, therefore, have found no error of law in the Tribunal's conclusion but we would not feel able to approve the route which the Tribunal took to that conclusion. At least in part the Tribunal relied on material which we would not think it proper to consider, namely a guide published by the Department of Trade and Industry to the Working Time Regulations (a guide which itself correctly says that it is not to be regarded as a complete or authoritative statement of the law) and, even less acceptable, a letter to Tuffnells from the Department of Environment, Transport and the Regions. However, for a number of reasons we shy away from dismissing the appeal here and now.
14. Firstly, we have in mind that we are required to interpret our national law in the light of the wording and purpose of relevant Directives - see e.g. Marleasing S.A. -v- La Comercial Internacional de Almentacion S.A. case 106/89 ECR 1990 I - 4135 at 4161 and see the slightly different way the matter is put in Webb -v- Emo Aircargo (UK) Ltd [1993] IRLR 27 H.L. at paragraph 22 where it is said that the national court must construe a domestic provision to accord with the terms of a Directive in the same field if it is possible (but only if it is possible) to do so.
15. As for the broad purpose of the WTD as a whole, nothing could be clearer than that, so far as concerns employed workers, it is applicable to all workers. The preamble to it cites the Community Charter of the Fundamental Social Rights of Workers that:-

"Every worker in the European Community shall have a right to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonised in accordance with National practices.

19. Every worker must enjoy satisfactory health and safety conditions in his working environment. Appropriate measures must be taken in order to achieve further harmonisation of conditions in this area while maintaining the improvements made"

Article 1 (3) itself begins with reference to "all sectors of activity" and many Articles refer to "every worker" - see e.g. Articles 3, 4, 5, and 7. However, whilst the broad purpose of the Directive may thus be all-embracing the wording, to which equally we are to have regard, of course includes also the exceptions in Article 1 (3) with which we have been concerned. Had some provision for the excepted sectors of activity been made in the WTD there might have been no internal conflict between the universality of the preamble and the exceptions. Equally that would be so had the "wait and see" provision of paragraph 16 of the preamble led, by now, to its having been seen to be necessary to adopt separate measures for some at least of the excepted sectors. Unhappily, though, that is not the case. Huge numbers of workers may, on a literal reading of Article 1 (3) (and equally of Regulation 18) thus be denied, inter alia, the paid annual holidays which the Directive espoused as long ago as November 1993. We feel some doubt as to whether that can have been truly intended by a Council which has not been heard to have spurned the Community Charter referred to in the preamble.

16. Secondly, had we been able to see some safety, health, social, economic or even rational reason underpinning the exception of, for example, all workers in the road transport sector of activity, we would have been less uncomfortable in giving literal force to the exception in Article 1 (3). We have, unfortunately, been quite unable to see what, if any, rational or other material distinction could, in relation to annual holidays, be required to exist between, say, a clerk in a shipping office and a clerk at a solicitors, a telephonist to an airline and one in a department store. Whilst we accept that it is no usual part of the task of a court of construction to question the wisdom of the legislature, it conduces only to discomfort, if not to intransigence, if it is asked to enforce an exclusion which seems pointless, irrational and unfair.
17. Thirdly, whilst we are familiar with the degree to which we can, in construing our domestic legislation, look to the deliberations of our own legislature - see Pepper -v- Hart [1993] IRLR 33, Counsel have not been able to agree upon how far we may listen to the voices of various community bodies. This point arises in this way.
18. We have had drawn to our attention a number of community papers post-dating the WTD. Taking them, as we hope, chronologically, the first is a Commission White Paper adopted, it would seem, on the 15th July 1997 and entitled "On sectors and activities excluded from the Working Time Directive". It begins:-

"1. The aim of this White Paper is to find the best ways of ensuring the protection of the health and safety, with regard to working time, of workers currently excluded from the Working Time Directive" (93/104/EC)

At its paragraph 14 it says:-

"14. The way in which the exclusions are drafted has been interpreted as implying that all workers in the transport and sea fishing sectors are excluded from the scope of the Directive, even those who perform sedentary tasks. The Commission considers that this should be clarified, as there is no objective reason why "non-mobile" employees should be treated differently in comparison to employees carrying out similar tasks in other industries. The test should relate to the nature of the activity, not to a definition of the "sector" in which the employee works".

Nothing there clearly suggests that the interpretation there referred to is incorrect or was initially unintended although the references to implication and clarification suggests that that may be so. Paragraph 18 of the White Paper indicates that some 3.5m people in the road transport industry are excluded by way of the exclusion which we are here considering. At paragraph 91 the White Paper proposes, inter alia, that the full provisions of the Working Time Directive should be extended to "all non-mobile workers" with appropriate adjustments for special cases.

19. Next, on the 26th March 1998 the Economic and Social Committee ("the ESC") adopted a resolution which noted that there was no objective justification for totally excluding any sector, that the exclusions had occurred because the Council had ignored the line earlier taken by both by the ESC and the Commission and, as is particularly relevant to our case:-

"..... that a large number of workers, particularly "non-mobile" workers in the road .... transport sector [.......] were excluded for no objective reason in 1993 and should be covered by Directive 93/104/EC. These workers are engaged in occupations which can be equated with work in other industries currently covered by the Directive. This is extremely important, as these workers make up the vast majority of those excluded".

The "vast majority" of some 3.5m people is a sizeable body of workers.

The ESC believed the problem should be addressed rapidly - paragraph 3.1.4 - and favoured the extension of the WTD to all "non-mobile workers" - paragraph 4.2.1.

20. On the 2nd July 1998 the European Parliament resolved that the exclusion of certain sectors of activity from the benefit of the Working Time Directive was "discrimination not supported by scientific or social considerations but is based on dubious political and economical reasons" and that an estimated 6 million workers were thus excluded from the scope of the WTD. It concluded that non-mobile workers must be brought within the scope of the WTD.
21. Then on the 24th November 1998 the Commission proposed a Council Directive to amend the WTD. It proceeds upon the basis that certain sectors of activity were excluded from the WTD and then notes that the Directive "should be applied to non-mobile workers in the sectors and activities currently excluded". The amended form of Article 1.3 which is proposed would leave out, inter alia, mention of the road transport sector of activity and would define mobile workers in a way that excluded the Appellants. It proposed in its Article 4 that Member States should adopt their laws to comply with the Amendment Directive within 2 years from the date of the adoption of the Amending Directive, which, is as yet, unadopted.
22. Latest in the papers put in front of us is the Council's Common Position paper adopted on the 12th July 1999. It recites that, inter alia, road transport is excluded from the scope of the WTD. At paragraph (5) it provides:-

"Whereas the health and safety of workers should be protected at the workplace not because they work in a particular sector or carry out a particular activity, but because they are workers;".

It contains an amendment of Article 1 (3) which omits all reference to transport sectors of activity as such. It provided also that its proposed Directive to that effect should enter into force on the day of its publication in the official Journal of the European Communities. We do not understand that yet to have happened.

23. It will be seen that these papers would drive us in opposite directions. They show that in the opinion of responsible community bodies "non-mobile" workers in the road transport sector of activity are, as yet, excluded from the benefit of the WTD and that a formal amendment is required before the Directive will be able to cover them. That, of course, would point strongly towards there being no error of law in the conclusion reached by the Tribunal below. Indeed, as the Chairman of the Tribunal mentioned, if persons in the Appellants' positions - non-mobile workers in the road transport sector of activity - were not excluded "the EU Commission would not be proposing to amend the existing Directive to extend the working time provisions to such non-mobile road transport workers".
24. On the other hand, a conclusion which, looking only at the employed road transport sector of activity, brings it about that a huge number of workers are excluded from benefits freely available to their colleagues in other sectors by reference to no scientific or social considerations and, if for any political and economic reasons at all, only for dubious ones, is so unattractive that it may never have been intended. That is a factor which disposes, were it open to us, to hold that the Appellants were not excluded from the benefit of the Working Time Directive. No decision of the European Court of Justice on the point has been drawn to our attention. We find ourselves torn between adopting, by way of a literal interpretation of the legislation (either domestic or Community legislation), the view already adopted by several Community bodies on the one hand that a formal amendment is necessary and, by implication, that until it comes, the wide exclusion takes effect and, on the other hand, a natural disposition to avoid a result which, in practical terms, is devoid of any support in economic, social, political or common-sense terms. Finding ourselves in that quandary we invited the parties to address us on our remitting questions to Europe. It is not the preferred position of either side. We need first to consider the circumstances in which raising of such questions is appropriate.
25. In Garland -v- British Rail Engineering [1982] 2 CMLR 174 at 179 Lord Diplock showed that it would be appropriate for the Court to refer a question to the European Court of Justice, even where the Court itself - there the House of Lords - had no serious doubt as to what the answer received would be likely to be, if the position was that there was no existing consistent line of authorities on the point in the European Court of Justice such as to make the answer too obvious and inevitable to be capable of giving rise to what could properly be regarded as a "question" within the meaning of Article 177. Even if it is very probable that the European Court of Justice would answer in a particular way that can be foreseen, so long as the prospective losing view is at least arguable the reference of a question can be proper - Thetford Corporation -v- Fiamma Spa [1987] 3 CMLR 266 at 275 per Parker L.J. We are unable to regard the submissions we have received from Mr Linden as wholly unarguable. Put another way, and using the language of Sir Thomas Bingham M.R. in R -v- International Stock Exchange -v- Else (1982) GB Ltd [1993] Q.B. 534, we do not feel we can ourselves resolve the issues before us with complete confidence without the guidance of the European Court of Justice: see also Macarthy's Ltd -v- Smith [1979] 3 All E.R. 325 C.A. at 334 g . Moreover, as the case before us involves not only the three Appellants but very likely thousands in the U.K. and, in Community terms, millions of others and as both parties have indicated to us an intention in the loser to appeal, we have pondered upon whether the Court of Appeal would be likely itself to raise questions if we had not. As it is hardly attractive to hold to be "acte clair" a provision responsibly described as "without objective justification" and as "not supported by scientific or social considerations but .... based on dubious political, political and economic reasons" we cannot be sure that the Court of Appeal would not wish to raise questions. That disposes of us to raise them ourselves sooner rather than later. Accordingly we shall not at this juncture conclude the appeal but rather stay it pending the ruling of the European Court of Justice on the following questions:-

Given that the informed view of responsible bodies that amendment is needed if a legislative provision is to achieve a certain effect is likely to be consistent only with a view that the provision, before amendment, does not have that effect, and given also the previously expressed views of the ESC, the European Parliament, the Commission and the Council's Common Position Paper on the subject of the exceptions to Article 1.3 of Directive 93/104/EEC suggesting that, as yet, there is an exception from the benefits of the Directive of all who work in the road transport sector of activity but that such an exception has been and is entirely unjustified, how far, if at all, are we enabled to infer from such non-legislative materials either that:

(a) as yet the proper construction of the wording of Article 1.3 is one which excludes all such persons; or

(b) that such a reading would not represent a just and purposive construction of the Article?

2. Whatever the conclusion is to Question 1, if, in the course of our task of interpreting our national laws in the light of the wording and purpose of the Directive, we encounter what we take to be a broad purpose ("every worker in the European Community will have a right to ... annual paid leave") but also, given no less prominence in the very same provision, a wording ("shall apply to all sectors of activity ... with the exception of .... road .... transport") which appears to be significantly destructive of that broad purpose, at all events on the facts before us, are we entitled (and if so, by reference to what principles) to apply our national laws to the facts of the particular case before us so as to give effect to that broad purpose notwithstanding the clarity of the wording appearing to exclude that purpose on such facts?

To raise similar issues in a less abstract way, are all workers employed in the road transport sector of activity referred to in Article 1.3 necessarily excluded from the scope of Directive 93/104?

If all such workers are not necessarily excluded, what test should the National Court apply in order to determine which workers employed in the road transport sector of activity are excluded by Article 1.3 and which are not?