United Kingdom Journals

The Working Time Directive: A Spanish Inquisition

John Fairhurst BA MPhil Solicitor

Senior Lecturer
Department of Law
University of Huddersfield

<j.fairhurst@hud.ac.uk>

Copyright © 1999 John Fairhurst.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article examines provisions of the Working Time Directive which are the subject of the first (and, to date only) referral by a national court to the ECJ pursuant to art 234 EC Treaty [previously art 177]. Those questions referred to the ECJ by a Spanish court (Sindicato de Medicos de Asistencia Publica (Simap) v Conselleria de Sanidad y Consumo de la Gereralidad Valenciana Case C-303/98) which could have an impact on the compatibility and interpretation of the British implementing Regulations (The Working Time Regulations 1998) will be considered, and an opinion of the ECJ's likely reply and the reasons for it will be offered. In addition to the questions referred by the Spanish court, some related matters will be discussed where it is considered there is a variance between the Directive and the British Regulations, or where there is scope for interpretative differences.

Contents

Introduction

Question One: General Application

Questions Two and Three: "Working Time"

• (a) National laws and/or practice
• (b) "Working time": the three conditions
• (c) Cumulative or disjunctive?
• (d) The ECJ's likely method of interpretation

Question Four: Night Work

• (a) "Night worker"
• (b) "Normal hours of work"
• (c) "Normal hours of work" - inclusion of overtime
• (d) Calculating the average normal hours of work
  • FORMULA 1
  • FORMULA 2
  • FORMULA 3
  • The ECJ's method of interpretation
  • The effect of the Formulas on shift patterns
• (e) "All reasonable steps"

Conclusion

Bibliography

Introduction

Although at its inception in 1958 the European Community was primarily an economic community, at a European Summit in Paris in October 1972, the Council of Ministers agreed a communiqué attaching as much importance to action in the social field as to the achievement of economic union. The Commission subsequently drafted an action plan which was approved by the Council of Ministers in January 1974 (OJ 1974 C13/74). The ensuing Social Action Programme proposed more than 30 measures over a 3-4 year period, but there was no specific proposal for a measure regulating working time within the Action Programme itself.

It was not until the Single European Act 1986 amended the founding EC Treaty to insert a new art 118a [art 118a has been incorporated into art 137 by the Treaty of Amsterdam], which provided a legal base for the adoption of directives related to improvement especially in the working environment, as regards the health and safety of workers, that the Commission finally proposed a directive to regulate working time (OJ 1990 C254/4).

Following a lengthy and sometimes acrimonious legislative passage, the Working Time Directive was formally adopted by the Council of Ministers on 23 November 1993, with an implementation date of 23 November 1996 (Council Directive 93/104/EC OJ 1993 L307/18⁽¹⁾). Eleven of the then twelve Member States voted in favour; the UK abstained and indicated that it would challenge the choice of legal base.

The UK's challenge to the validity of the Directive was dismissed by the ECJ in UK v Council of the European Union Case C-84/94 [1996] ECR I-5755, except for the annulment of the second sentence of art 5 which provided that the minimum 24-hour weekly rest period should "in principle include Sunday". The ECJ held that linking the weekly rest period to a specific day of the week had no connection with the improvement of workers' health and safety⁽²⁾.

The ECJ's judgment was delivered on 12 November 1996, eleven days before the deadline for the Directive's implementation. However, it was not until 1 October 1998 that the Working Time Regulations 1998 (SI 1998/1833⁽³⁾), which cover England, Scotland and Wales, came into force. The DTI has issued guidance on the Regulations' application; although this guidance has no legal force, it could prove to be persuasive before employment tribunals⁽⁴⁾ . The Northern Ireland Rules SR 1998/386 (as amended by SR 1998/422 and SR 1999/133) came into force on 23 November 1998 and, in the main, follow the pattern of SI 1998/1833.

The first (and currently only) referral by a national court seeking the ECJ's clarification of the Directive has been by a Spanish court in Sindicato de Medicos de Asistencia Publica (Simap) v Conselleria de Sanidad y Consumo de la Gereralidad Valenciana Case C-303/98 (OJ 1998 C299/25). The Opinion of the Advocate General is expected within the next twelve months. The case concerns medical practitioners who are subject to Spanish public law rather than private law. The dispute concerns the organisation of working time where the medical practitioners are on-call either through a contact system (i.e. away from the workplace) or actual presence at the workplace.

This article in the main considers those questions (and probable answers to those questions by the ECJ) which are particularly relevant to the UK, in that it could have an impact upon the compatibility and interpretation of the implementing Regulations. Reference will be made solely to the British Regulations, although there will be a consequential impact upon the Northern Ireland Rules:

Question 1 concerns the general application of the Directive and in particular seeks clarification on the implications of the reference in art 1(4) to the fact that the provisions of the Health and Safety Framework Directive 89/391/EEC (OJ 1989 L183/1) are "fully applicable" to the substantive provisions of the Directive.

Questions 2 and 3 are related to the scope of the "working time" definition within art 2(1) of the Directive and, in particular, whether or not time spent on-call (but not where the worker is actually working) comes within its scope. The ECJ's answer on this point will determine whether the British Regulations, which have sought to limit the scope of "working time" to such periods when a worker is actually working, are compatible with the Directive.

Question 4 relates to night work and seeks clarification of the "night worker" definition within art 2(4). It is additionally concerned with the scope of "normal hours of work" for night workers within art 8(1) and in particular whether or not time spent on-call, but not actually working comes within its scope; this is similar to the question raised above in relation to "working time".

In addition to the questions referred by the Spanish court, some related matters will be discussed where it is considered there is a variance between the Directive and the British implementing Regulations, or where there is scope for interpretative differences:

The British Regulations, in defining "normal hours of work" for night workers, in specific situations excludes from its scope overtime actually worked. It will be considered whether or not this is compatible with the Directive.

An additional issue relates to the process for calculating the average "normal hours of work". Dependent upon the formula adopted, this can result in widely different levels of protection for the health and safety of night workers. The British Regulations will be considered alongside the formula which the ECJ is likely to favour to determine whether the implementing Regulations are compatible with the Directive.

Top | Contents | Biliography

Question One: General Application

The first question relates to the general application of the Directive. The ECJ has been asked, inter alia, whether the reference in art 1(4) to the fact that the provisions of the Health and Safety Framework Directive 89/391/EEC (OJ 1989 L183/1) are "fully applicable" to the matters referred to in art 1(2) (i.e. to minimum periods of daily rest, weekly rest and annual leave; breaks and maximum weekly working time; and certain aspects of night work, shift work and patterns of work) has any particular implications with regard to reliance being placed on it and its application (question 1(d)). Application of the provisions of the Framework Directive to the Working Time Directive is stipulated to be without prejudice to more stringent and specific provisions contained in the Directive itself. Article 6(1) of the Framework Directive imposes a general obligation on employers to:

"... take the measures necessary for the safety and health protection of workers, including prevention of occupational risks ... The employer shall be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations."

The emphasis here is on prevention; assessing risks to the health and safety of workers and avoiding those risks. Article 6(2) of the Framework Directive sets out nine principles of prevention, including: avoiding risks; evaluating risks which cannot be avoided; combating risks at source; and adapting work to the individual. This requires employers to undertake a risk assessment to prevent harm to the workers' health and safety. This was transposed into British law by the Management of Health and Safety at Work Regulations 1992 SI 1992/2051 reg 3 of which imposes an obligation on employers to undertake the stated risk assessment.

The purpose of the Working Time Directive is quite clearly related to the health and safety of workers, having been adopted under the former art 118a EC Treaty [now art 137], para 1 of which refers to improvement "especially in the working environment, as regards the health and safety of workers". In UK v Council of the European Union Case C-84/94 [1996] ECR I-5755, the ECJ stated:

"There is nothing in the wording of [the former] Article 118a [now art 137] to indicate that the concepts of 'working environment', 'safety' and 'health' as used in that provision should, in the absence of other indications, be interpreted restrictively, and not as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment, including in particular certain aspects of the organisation of working time. On the contrary, the words 'especially in the working environment' militate in favour of a broad interpretation of the powers which [the former] Article 118a [now art 137] confers upon the Council for the protection of the health and safety of workers. Moreover, such an interpretation of the words 'safety' and 'health' derives support in particular from the preamble to the Constitution of the World Health Organisation to which all the Member States belong. Health is there defined as a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity" (para 15).

The ECJ has accordingly held in this case that organisation of working time is a health and safety matter, and has given a broad interpretation as to what constitutes the health and safety of workers; it is not confined to solely physical issues, but also comprises of the mental and social well-being of the worker. The relevance of the reference to the Framework Directive in art 1(4) of the Directive, together with the ECJ's broad interpretation of health and safety, is that the Directive's provisions will be interpreted in accordance with the nine principles of prevention set out in the Framework Directive: avoiding risks; evaluating risks which cannot be avoided etc. Additionally, there is undoubtedly now an overriding obligation on employers to include the organisation of working time within their risk assessments, but this must not dilute the more specific requirements of the Directive.

Top | Contents | Biliography

Questions Two and Three: "Working Time"

The second question referred to the ECJ concerns time spent on-call, and whether or not that comes within the scope of "working time" as defined in the Directive (art 2(1)). Article 2(1) defines "working time" as "any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice" (art 2(1)).

(a) National laws and/or practice

The reference to "in accordance with national laws and/or practice" is the subject of the first part of question two (question 2(a)). The Spanish medical practitioners in question have their employment relationship governed by public law rather than private law. As such, their time spent on-call is excluded from the calculation of their total weekly hours in accordance with national practice. The Spanish court is seeking guidance on whether art 2(1) is satisfied per se because of the fact that this is national practice. However, the reference to national laws and/or practice simply relates to the method of national implementation, which must reflect the concept of "working time" as set out in the Directive. It does not permit a deviation from the "working time" definition, which would be the case if the ECJ was to answer this part of question two in the affirmative. If the definition of "working time" includes time spent on-call, then it is irrelevant that a national practice excludes it. The Spanish national practice would not comply with the terms of the Directive in these circumstances.

This view can be supported by reference to art 2(c) of the Acquired Rights Directive 77/187/EEC (OJ 1977 L61/26) which provides that "'representatives of the employees' means the representatives of the employees provided for by the laws or practice of the Member States ..." (emphasis added), in the context of information and consultation duties prior to the transfer of an undertaking. The European Commission initiated infraction proceedings against the UK (Commission of the European Communities v United Kingdom Case C-382/92 [1994] ECR I-2435), pursuant to art 226 EC Treaty [previously art 169], because at the material time employee representation was based upon voluntary recognition of trade unions by employers. Therefore an employer who failed to recognise a trade union was under no duty to inform and consult as required under the Directive. The ECJ held that art 2(c) did not simply refer to the rules in force in the Member States on the designation of employee representatives, but it required Member States to establish a system to ensure that all employees to whom the Directive applied were covered. The Member States would have the option to implement this by national laws or some other procedure (e.g. collective agreement) provided this was an effective mechanism to ensure that all employees were protected. In the UK this has to be by national legislation because leaving matters to collective agreement would not ensure the protection of all employees. The ECJ stated "The interpretation proposed by the United Kingdom would allow Member States to determine the cases in which employee representatives can be informed and consulted, since they can be informed and consulted only in undertakings where national law provides for the designation of employee representatives" (para 19). The case law of the ECJ is well settled, and therefore the ECJ will answer the first part of question 2 in the negative and that: "Spain's national practice could have the effect of excluding periods of time which come within the scope of "working time" within the meaning of art 2(1) of the Directive".

Top | Contents | Biliography

(b) "Working time": the three conditions

The second part of the question (questions 2(b) and 2(c)) is more relevant to Britain as the ECJ's decision could impinge upon the interpretation of the implementing Regulations. It relates to the periods when medical practitioners are on-call either under a contact system (i.e. away from the workplace) or when they are actually present at the place of work. Is the time spent on-call "working time", or only such time as is spent carrying out the activity for which they have been called out? The critical question is whether the three conditions, within the art 2(1) "working time" definition, are conjunctive (i.e. cumulative) or disjunctive (i.e. free standing). If they are conjunctive then the scope of "working time" will be much narrower than if they are disjunctive.

The relevance of the "working time" definition to the Directive's provisions is that art 6 places a 48-hour limit on weekly "working time", including overtime, which can be averaged over a period of up to four-months (art 16). This reference period can be extended to six or twelve months in specified circumstances (art 17(4)). In addition to the weekly working time limit, arts 3 and 5 entitle workers to minimum daily and weekly rest periods. Article 3 entitles workers to 11 consecutive hours rest in every 24-hour period, and art 5 to a weekly uninterrupted rest period of 24 hours, in addition to the 11-hour minimum daily rest period referred to in art 3. Article 5 thus provides for a minimum weekly rest period of 35 consecutive hours, although this may be limited to 24-hours if justified by objective, technical or work organisation conditions. The impact of art 5 on employers is lessened if the relevant Member State opts to enable the entitlement to be averaged over a two-week reference period (art 16(1)); the British implementing Regulations provides for such an extended reference period (reg 11(2)).

Top | Contents | Biliography

(c) Cumulative or disjunctive?

Article 2(1) has been implemented in Britain by reg 2(1) which simply copies out the wording of the Directive: "working time" in relation to a worker, means "(a) any period during which he is working, at his employer's disposal and carrying out his activities or duties ..." (emphasis added). If a literal interpretation is applied to the wording of reg 2(1), it would appear that in order for time to count as "working time" all three conditions must be satisfied. This is confirmed in the DTI's Regulatory Guidance which states that

"time when a worker was 'on-call' but otherwise free to pursue their own activities would not be working time, as the worker would not be working ... A lunch break spent at leisure would not be working time. ... Time spent travelling to and from a place of work is unlikely to be working time as a worker would probably neither be working nor carrying out their duties" (DTI Guidance URN 98/894 1998 para 2.1.2).

Within the British National Health Service, the unions and employers have reached an agreement covering workers who come within the remit of the Whitley Councils. The General Whitley Council Agreement has been amended to insert a new section 44 "Implementation of the Working Time Regulations". "Working time" is defined as "any time when an employee is working, at his employer's disposal and carrying out activities or duties" (section 44 para 8). It continues "For time to be classed as working time all three elements must be satisfied". However, there are special provisions within the Agreement for workers who are on-call. Staff who are on-call away from the place of work are regarded as working from when they are required to undertake any work-related activity. Because they are otherwise free to pursue time as their own during the periods they have not been called out, this time will not count as "working time" (para 13). Unison Health Care has interpreted this to mean that such workers will be considered to be "working" from when they receive a telephone call, or message, asking them to attend work or to answer a query on the telephone (1998 p 11). However, where staff are required to "sleep in" on NHS premises, because they are not free to pursue their time as their own they are regarded as working and the whole of this time will count towards "working time" (para 14). This deviation from what the social partners to the Agreement have considered to be the scope of "working time" is permitted by art 15 of the Directive, whereby Member States have the power to, inter alia, facilitate or permit the application of collective agreements to incorporate terms which are more favourable to the protection of the safety and health of workers. The British Regulations reflect this in that collective agreements can extend the scope of "working time" to include "additional" periods of time (reg 2(1)). In negotiating this Agreement, the social partners have undoubtedly been influenced by the DTI's Regulatory Guidance in concluding that the conditions are conjunctive.

It is not only the UK that has seemingly determined that the three conditions should be read conjunctively. Ireland's implementing legislation, Organisation of Working Time Act 1997, defines "working time" as "any time that the employee is - (a) at his or her place of work or at his or her employer's disposal, and (b) carrying out or performing the activities or duties of his or her work" (s 2(1)). This represents a departure from the actual wording of the Directive, but because there is the requirement that the employee must actually be carrying on or performing the duties for the time to qualify as "working time", the Irish legislation reflects a conjunctive application of the conditions.

However, whether or not the conditions are cumulative has been questioned by the EAT in Cawley and others v Hammersmith Hospitals NHS Trust (unreported - EAT/475/98, judgment delivered 20 January 1999). This case concerned the reorganisation of working practices which resulted in radiographers being on-call, periodically, for a continuous 27.5 hour period. The point in time at which the dispute arose was prior to the Directive's implementation date of 23 November 1996, and therefore the Directive was not applicable. However, Morison J (President of the EAT) stated obiter that "We are of the view that the wording of Article 2(1) [of the Directive] is patently ambiguous as to whether the requirements are conjunctive or disjunctive".

Pitt and Fairhurst have likewise raised a question mark over the conjunctive or disjunctive nature of the conditions: "the presence of the word 'and' ... does not necessarily prove that the conditions are cumulative" (1998 p 36); whereas Hall, Lister and Sisson state that although the definition "is bound to give rise to difficult issues of interpretation", they are of the view that "all three elements of the definition must be satisfied" (1999 p 6).

Commentators on the Directive and Britain's implementing Regulations have considered various patterns for the organisation of working time to ascertain whether or not they constitute "working time" within the meaning of the Directive (see, for example, Pitt and Fairhurst 1998, pp 36-39). A lunch break, for example, would not constitute "working time" because the worker is not working, is not (usually) at the employer's disposal, nor carrying out the employer's activity or duties. None of the three conditions are satisfied, and therefore whether there is a conjunctive or disjunctive reading of the conditions is irrelevant.⁽⁵⁾

In considering all the various patterns for the organisation of working time, it becomes clear that either all the conditions are satisfied, or none are; with the one exception of on-call working.⁽⁶⁾

As previously discussed there are two categories of on-call worker: those who are on-call away from the workplace and those on-call at the workplace. In some Member States, such as Germany, presence at the workplace is treated as the decisive criterion in ascertaining whether or not a worker is working (see Pitt and Fairhurst1998, p 37). As discussed above, the NHS Agreement has also made a distinction between workers on-call at the workplace and those on-call away from the workplace.

Top | Contents | Biliography

(d) The ECJ's likely method of interpretation

The ECJ rarely interprets a provision literally, but prefers to employ a contextual or teleological method of interpretation. Where a contextual method is employed, the ECJ would not consider the provision under consideration in isolation, but would place the provision within its context and interpret it in relation to the other provisions of the Directive (see, for example, Commission v Luxembourg and Belgium Cases 2 & 3/62 [1962] ECR 425).

A parallel can be drawn with the ECJ's approach in interpreting other employment-related Directives. There is a large volume of ECJ case law on the interpretation of the Acquired Rights Directive 77/187/EEC (OJ 1997 L61/26), for example. The ECJ has restated the purpose of the Directive (the protection of employees where the undertaking in which they are employed is transferred) on numerous occasions and interpreted the relevant provisions of the Directive in this light (see for example Landsorganisationen i Danmark for Tjenerforbundet i Danmark v Ny Molle Kro Case 287/86 [1987] ECR 5465).

The scope of "working time" cannot therefore be considered in isolation, but it will be interpreted in the light of the purpose of the Directive, which is quite clearly related to the health and safety of workers, having been adopted under the former art 118a EC Treaty [now art 137]. In UK v Council of the European Union Case C-84/94 (above), the ECJ acknowledged the Directive's purpose:

"29. The approach taken by the directive, viewing the organisation of working time essentially in terms of the favourable impact it may have on the health and safety of workers, is apparent from several recitals in its preamble...".

As discussed above, it is clear from the ECJ's judgment in this case that it is prepared to give a broad interpretation as to what constitutes the health and safety of workers; it is not confined to solely physical issues, but also comprises of the mental and social well-being of the worker. In construing "working environment" Advocate General L-ger, in his Opinion, stated that this phrase had to be construed in broad terms as including any factor affecting the worker in his "work".⁽⁷⁾

It is therefore arguable that the ECJ will, in interpreting "working time", take into account all factors which could impinge upon the worker's health and safety and not restrict it to situations where the worker is actually carrying out the employer's activities or duties i.e. the three conditions will not be read conjunctively. In reaching such a decision, the ECJ will additionally be guided by the nine principles set out in the Framework Directive, as discussed above. It has already been identified above that the only workers to be possibly affected by a conjunctive/disjunctive distinction are those who are on-call.

In the case of an on-call worker who has to be physically stationed at the workplace, this inevitably affects the worker's freedom to use their time for their own purpose; it impinges upon the worker's freedom to socialise with friends and family; to unwind at a sporting event or to have a round of golf; of generally knowing that in their "free" time they can do whatever they want to, safe in the knowledge that their employer cannot contractually call upon their services. This could encroach upon a worker's health and safety in the broad sense envisaged by the ECJ: "a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity". To illustrate the practical implications of the conjunctive/disjunctive distinction, take the case of a hotel porter who is required to be physically present at the hotel between the hours 7 am to 7 pm, six days a week, but who only actually receives payment for the hours when he is called to work by the employer. Articles 3 and 5 are complied with, but whether or not art 6 is satisfied depends upon the scope of "working time". If the conditions are read conjunctively, then only those periods when the worker is called upon to work will count as "working time". If he is generally called to work between the peak hours 7 am to 10 am and 4 pm to 7 pm, and for an additional two hours during the period 10 am to 4 pm, the total daily "working time" would be 8 hours, constituting 48 hours over the six-day week, and therefore art 6 would be complied with despite the fact he would be at his employer's disposal for 72 hours throughout the week. However, if the conditions are read disjunctively, because the worker is "at the employer's disposal", the whole of the period spent on-call, whether or not actually working or carrying out the employer's activities or duties, would constitute "working time"⁽⁸⁾; art 6 would undoubtedly be breached.

Although a disjunctive reading of the three conditions would impinge upon the employer's prerogative to organise working time, it would undoubtedly have a beneficial impact upon the worker's health and safety (in the broad sense envisaged by the ECJ). It is argued that the ECJ will prefer a disjunctive reading of the conditions, and that in the case of a worker who is required to be on-call at the workplace, all time during which the worker is required to be at the workplace will be included within the calculation of "working time", whether or not the worker is actually working, or carrying out the employer's activities or duties.⁽⁹⁾

One factor which could militate against a disjunctive reading is that it is specifically provided that Directives adopted pursuant to the former art 118a EC Treaty [now art 137] should avoid imposing "administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings". The recitals to the Directive's preamble copy out this obligation, but do not further demonstrate how its provisions reflect this obligation. However, in UK v Council of the European Union Case C-84/94 (above), the ECJ held that the Directive had taken into account the effect its provisions would have on SMEs (para 45).⁽¹⁰⁾ In any event, the derogations provided for within the Directive ensure sufficient flexibilities (if the relevant Member State has elected to take advantage of them) to enable, inter alia, SMEs to adjust their organisation of working time with a minimal degree of financial cost.

The greatest flexibility relates to the minimum daily and weekly rest periods. The only derogation from the weekly working time limit relates to workers whose duration of working time is not measured and/or predetermined or can be determined by the workers themselves (art 17(1)); an example given in the Directive is managing executives or others with autonomous decision-taking powers. One important provision which applies to the weekly working time limit empowers Member States to provide for workers to individually opt-out from the limit (art 18(1)(b)(i)), subject to the overriding obligation that the worker has the right to refuse and will not be subjected to any consequential detriment from the employer.

The facts of Cawley and others v Hammersmith Hospital NHS Trust (above) can be used to illustrate the operation of these flexibilities. One of the arguments before the EAT was that the reorganisation of working time, which required radiographers to be on-call for a continuous 27.5 hour period, five times a year, constituted a breach of art 3 which guarantees to every worker a rest period of 11 consecutive hours per 24-hour period. The rota was introduced to provide emergency cover; however art 17(2.1)(c)(i) provides a derogation from art 3 in the case of activities involving the need for continuity of service. Therefore, even if the on-call worker had come within the scope of "working time", the Member State could have elected to enable employers to derogate in such circumstances.

Additionally, the recitals to the Directive's preamble state that "the improvement of worker's safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations". It is therefore argued that this factor will not override the conclusion already reached with regard to on-call workers physically present at the workplace.⁽¹¹⁾

In the case of a worker who is on-call away from their place of work, such a worker is naturally able to pursue their own activities until (if) called upon to work by their employer. This differs to a worker who is on-call but is required to be physically stationed at their workplace. The degree of control exercised by the employer over the worker's freedom to use their time for their own purpose is greater in the latter instance than in the former and therefore the impact upon the health and safety of the worker on-call at the workplace is arguably greater.⁽¹²⁾ Although in the latter case the worker may be said to be "at the employer's disposal" the ECJ could elect to ignore this in the former; an application of the de minimus rule in English law. A parallel could perhaps be drawn with the application of the art 30 EC Treaty (formerly art 36) defence to the free movement of goods in respect of distinctly applicable measures which are equivalent to quantitative restrictions. In R v Henn and Darby Case 34/79 [1979] ECR 3795 the ECJ considered the regulation of pornographic material in the UK to be so restrictive that it could be presumed that there was no lawful trade of such goods within the UK. It is argued that in the case of a worker who is on-call away from his place of work, because the employer does not have a sufficient degree of control over him, that he will not be "at the employer's disposal" and therefore this time will not constitute "working time". However, as soon as the on-call worker is called in to work, all time thereafter, including travel to the workplace, will constitute "working time" because at this point, the employer exercises a sufficient degree of control over the worker; or, to use the language employed by the Directive, the worker is "at the employer's disposal ".

Question three is related to the second question in so far as it refers to whether time spent on-call should be included when determining the average "working time" for each seven-day period (question 3(a)) or whether time spent on-call should be regarded as overtime (question 3 (b)). These issues have already been dealt with above and therefore are otiose.

Top | Contents | Biliography

Question Four: Night Work

The Directive regulates night work and in particular places a daily limit on the hours of night work. Article 8(1) provides that Member States should take the measures necessary to ensure that "normal hours of work for night workers do not exceed eight hours in any 24-hour period" (emphasis added); this is additional to the art 6 weekly working time limit which applies to both day and night workers.

Question four relates to the scope of the "night worker" definition (question 4(a)) and the concept of "normal hours of work" in applying the night time limit (question 4(c)).

(a) "Night worker"

Question 4(a) asks that in view of the fact that normal working time is not at night, but that part of the on-call shifts periodically to be performed by some of the medical practitioners concerned is performed at night, are they to be regarded as night workers pursuant to art 2(4)(b) of the Directive. This necessitates a consideration of the "night time" definition before that of "night worker" can be scrutinised.

"Night time" is defined as any period of not less than seven hours, as defined by national law, and which must include in any case the period between midnight and 5 am (art 2(3)). This has been transposed in Britain by reg 2(1) which defines "night time" as "a period (a) the duration of which is not less than seven hours, and (b) which includes the period between midnight and 5 am". The period 11 pm to 6 am has been selected as a default for "night time". This can be varied by a "relevant agreement" (i.e. a collective agreement, a workforce agreement, or other legally enforceable written agreement), provided it is for a duration of not less than seven hours, and includes the period midnight to 5 am. Therefore, a collective agreement could define "night time" as the period 10 pm to 6 am.

The Directive defines "night worker" as either "(a) any worker who, during night time, works at least three hours of his daily working time as a normal course" (emphasis added), or as "(b) any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned: (i) by national legislation, following consultation with the two sides of industry; or (ii) by collective agreements or agreements concluded between the two sides of industry at national or regional level" (art 2(4)). Although the Spanish court seeks guidance on the application of art 2(4)(b), this is not relevant to the dispute because Spain has failed to define the proportion of annual working time in respect of workers governed by public law, as required under art 2(4)(b) of the Directive. This is probably why the Spanish court further asks the ECJ whether or not their national legislation on night work in respect of workers subject to private law could be applied to the medical practitioners concerned whose employment relationship is governed by public law (question 4(b)). The ECJ will undoubtedly refer to the national courts' obligation to interpret national law, so far as is possible, in the light of the wording and purpose of the Directive in order to achieve the result pursued by it (Marleasing SA v La Comercial Internacional de Alimentacion SA Case C-106/89 [1990] ECR I-4135). However, it will not be appropriate to apply this interpretative obligation in this situation because art 2(4)(b) stipulates that national legislation can only be adopted "following consultation with the two sides of industry"; presumably there has been no consultation of Spain's public sector. It would therefore be necessary for the medical practitioners to be considered under art 2(4)(a); the question being whether they work at least three hours of their daily working time "as a normal course".

Article 2(4) has been transposed in Britain by reg 2(1) which defines "night worker" as "a worker (a) who, as a normal course, works at least three hours of his daily working time during night time, or (b) who is likely during night time, to work at least such proportion of his annual working time as may be specified for the purposes of these Regulations in a collective agreement or a workforce agreement". The Regulations further provide that the first limb (which implements art 2(4)(a) of the Directive) will be satisfied where the worker works "three hours of his daily working time during night time" on the majority of days on which he works. However, this is "without prejudice to the generality" of the expression "as a normal course", which therefore implies that the expression does not necessarily require night work to be undertaken on the majority of working days; this expands upon the Directive's provision. The DTI's Regulatory Guidance states that "A worker may be said to work at night 'as a normal course' if they do so on a regular basis, e.g. on a rotating shift pattern that resulted in them working regularly during night time, as opposed to on an infrequent or ad hoc basis" (DTI Guidance URN 98/894 para 3.1.3). Phillips and O'Brien have stated that "Such an interpretation would appear to cover many shift workers who have to work in part at night. For example, it would seem to include workers engaged on a three-week rotating shift pattern working one week on morning shifts, the second week on afternoon shifts and the third week on night shifts" (1999 p 21).

The scope of "night worker" under the Directive has been considered by the High Court of Justice in Northern Ireland. R v Attorney General for Northern Ireland ex parte Burns IRLR [1999] 315 concerned a worker who spent one week of each three week cycle working from 9 pm to 7 am, Sunday to Friday. At the material time the Directive had not been implemented in Northern Ireland and the applicant was seeking, inter alia, Francovich damages from the State (see Francovich v Italy Cases C-6 & 9/90 [1991] ECR I-5357). One of the questions before the court was whether or not the applicant was a "night worker" within the terms of art 2(4)(a) of the Directive. It was submitted by the respondent that this period of night shift work was insufficient to qualify the applicant as a "night worker". The respondent argued that the use of the expressions, "daily working time" and "as a normal course" in art 2(4)(a) indicated that, for the purposes of the Directive, a "night worker" was a person who worked night shift only. Alternatively, the respondent suggested, a "night worker" was a person who worked night shift predominantly. It was submitted that the proportion of the applicant's night work was so small that she did not qualify for protection under the Directive. These submissions were rejected.

Kerr J stated:

"I do not accept these arguments. The requirement that a night worker should be one who works at least three hours during night time 'as a normal course' involves no more, in my opinion, than that this should be a regular feature of her employment. The Directive contemplates that a night worker may be someone who works as little as three hours during night time. It is inconceivable, therefore, that the definition of night worker should be confined to someone who works night shifts exclusively or even predominantly. Moreover Article 2(4)(b) explicitly recognises that a night worker should include those who work only a proportion of their time during the night.

I consider, therefore, that the applicant would have been deemed a night worker had the Directive been transposed into domestic law during the time that she was employed."

According to Kerr J, the Directive has a similar effect to that under the domestic Regulations. This is undoubtedly a correct reading of the Directive, and is supported by Bercusson who states that "occasional" night workers would come within the scope of "night worker" (Bercusson 1996, p 328). However, there would have to be a regular pattern of night work and therefore a worker who, for example, only worked five nights per year would fail to qualify.

Top | Contents | Biliography

(b) "Normal hours of work"

The final part of question four concerns the scope of "normal hours of work" within the meaning of art 8(1): "Do the 'normal' hours of work referred to in Article 8(1) of the Directive also include on-call shifts performed under the contact system or while physically present?" (question 4(c)).

The only application of "working time" to night workers is in the definition of "night worker" (art 2(4)), but once a worker comes within the scope of "night worker", the regulation of length of night work is measured according to the worker's "normal hours of work" and not their "working time". Unlike "working time", the Directive does not define "normal hours of work". The question here is whether "normal hours of work" bears a different meaning to "working time", the definition of which has been discussed above. As "normal hours of work" only applies to the regulation of the length of night work, it could be argued that its scope is stricter, thus recognising the need to afford a higher degree of protection for the health and safety of night workers. This need is clearly set out in the recitals to the Directive's preamble:

"Whereas research has shown that the human body is more sensitive at night to environmental disturbances and also to certain burdensome forms of work organisation and that long periods of night work can be detrimental to the health of workers and can endanger safety at the workplace;

Whereas there is a need to limit the duration of periods of night work, including overtime ...".

It would undoubtedly cover all periods constituting "working time" under art 2(1) as discussed above (and therefore would include all time spent on-call while physically present at the workplace). It is arguable that it would additionally include all hours of work spent at the workplace (e.g. it would include rest breaks taken during working time - lunch breaks etc.), which do not otherwise constitute "working time". However, it is unlikely to be stretched to include time spent on-call away from the workplace, other than in the circumstances discussed above, in the context of "working time".

The DTI's Regulatory Guidance stipulates that in calculating a night worker's normal hours of work, an employer will need to consider "how much working time the night worker normally works; [and] for any worker who is normally working in excess of an average of eight hours a night, how to reduce their working time ..." ((emphasis added) DTI Guidance URN 98/894 para 3.1.1). If the scope of "normal hours of work" within the Directive differs to that of "working time", this is incorrect. However reg 6(5), which sets out the formula for calculating the average, refers to "the number of hours during the reference period which are normal working hours for that worker"; it does not refer to "working time". "Normal hours of work" is also not defined within the Regulations. If the ECJ was to rule that "normal working hours" had a broader scope than "working time", it would be possible for British courts and tribunals to interpret this implementing provision purposively (and thus comply with their obligation under Marleasing SA v Comercial Internacional de Alimentacion SA case C-106/89 [1990] ECR I-4135) as the provision is capable of bearing more than one meaning, and its meaning would not be distorted by interpreting it in this way (see, for example, Webb v EMO Cargo (UK) Ltd (No 2) [1995] WLR 49 HL for an application of the Marleasing principle by the House of Lords).

Top | Contents | Biliography

(c) "Normal hours of work" - inclusion of overtime

One question which the Spanish court has not asked the ECJ, but which is relevant to Britain, is whether or not overtime is included within the scope of "normal hours of work". In Britain, under reg 6, the limit is on the worker's "normal hours of work" (copied from art 8 of the Directive) rather than the hours actually worked, and the DTI's Regulatory Guidance states that it is therefore irrelevant if the worker is absent due to illness (DTI Guidance URN98/894 para 3.1.6); it is the contractual hours of work which make up the "normal hours of work". This should be contrasted with reg 4 which, in the context of maximum weekly working time, aggregates the total hours actually worked during the applicable reference period to ascertain if the limit has been exceeded; art 16(2) specifically provides for this.

Regulation 6(6) provides that if the Employment Rights Act 1996 s 234 applies to a worker, then the worker's "normal hours of work" are the worker's "normal working hours" for the purposes of the 1996 Act. Section 234 applies to "employees"⁽¹³⁾ who are entitled to overtime pay when employed for more than a fixed number of hours in a week or other period. In this case, the normal working hours are the fixed number of hours (i.e. overtime actually worked is excluded). Therefore, if a contract of employment provides that the employee will work 40 hours per week at £5 per hour, after which overtime rates will apply at £7 per hour, then the normal working hours will be 40, even if the employee actually works 60 hours in a week. However, if the contract of employment fixes the number, or a minimum number, of hours of employment in a week or other period (whether or not there is also provision for that number or minimum to be reduced in certain circumstances) and that number or minimum number of hours exceeds the number of hours without overtime, then the normal working hours are that number or minimum number, and not the number of hours without overtime. Therefore, if the contract provides that the employee will work 50 hours per week (or at least 50 hours per week) and overtime rates at time-and-a-half will apply to hours in excess of 40 hours, normal working hours will be 50. Thus normal working hours will not include overtime unless there is a contractual obligation on both parties to the agreement i.e. on the employer to provide the overtime and on the employee to work the overtime. This was confirmed by the Court of Appeal in Tarmac Roadstone Holdings Ltd v Peacock [1973] ICR 273, and followed by the Court of Appeal in Lotus Cars Ltd v Suttcliffe and Stratton [1982] IRLR 381. In Tarmac Roadstone, the contract provided for a fixed period of 40 hours per week. Employees were obliged to work overtime if required by the employer, but there was no obligation on the employer to provide overtime. The Court of Appeal held that the employee's normal working hours were 40 per week even though he regularly worked 57 hours per week. This is confirmed in the DTI's Regulatory Guidance which states that "Where a worker works overtime, their normal working hours are the hours of work fixed by their contract of employment. Time worked as overtime is not normal working time unless a worker's contract fixes a minimum number of hours, including overtime, which is more than their notional fixed hours" (DTI Guidance URN 98/894 para 3.1.6).

Although arts 6 (maximum weekly working time) and 8 (length of night work) of the Directive use different language (art 6 refers to "average working time", whereas art 8 refers to "normal hours of work"), the aim of the Directive is to provide a further safeguard to night workers, over and above that under art 6. As discussed above, this is clearly set out in the preamble to the Directive, which particularly provides that:

"Whereas there is a need to limit the duration of periods of night work, including overtime ..." (emphasis added).

This has not been reflected in the Regulations. The DTI's Regulatory Guidance states that

"If night workers do significant amounts of overtime which is outside their 'normal' hours this may mean that they exceed the weekly working time limit though comply with the night work limit during that period" (DTI Guidance URN 98/894 para 3.1.6).

Given that the recitals to the Directive's preamble actually refer to imposing limits on the duration of night work, including overtime, it appears incongruous that overtime actually worked is not taken into account when calculating "normal hours of work" under reg 6. This would mean that a night worker who works a five-day week and who regularly did an hour's overtime on top of an eight-hour night shift throughout the reference period, because required to do so by the employer, would not be over the night work limit despite regularly working nine hours a night. It is submitted that the UK has failed to implement the Directive correctly in failing to include overtime actually worked within the calculation of "normal hours of work".

Top | Contents | Biliography

(d) Calculating the average normal hours of work

Another issue not specifically referred to the ECJ by Spain is related to the regulation of hours of night work: what is the process for calculating the night time limit?

Member States have the option to lay down a reference period over which the "eight hours in any 24-hour period" limit is averaged (art 16(3)). If a Member State lays down such a reference period, three possible formulas could be employed to calculate the average. This is best illustrated by an example. Consider the situation where a Member State has laid down a four-week reference period for the calculation of the average normal hours of work for night workers in any 24-hour period. The worker works four nights each week, Monday to Thursday, during the reference period, for a duration of 12 hours each night (9 pm to 9 am). Application of the three formulas to this situation is considered below:

FORMULA 1

All 24-hour periods during the reference period are included within the calculation, whether or not the worker actually works during all such 24-hour periods, but with one exception: art 16(3) explicitly provides that the 24-hour weekly rest period (to which a worker is entitled under art 5) must be excluded from the calculation. In this case, there will be a maximum of six 24-hour periods each week, which will total 6 x 4 = 24 over the four-week reference period. The worker's total hours over the reference period = 12 x 4 x 4 = 192 hours. The average normal hours of work is arrived at by dividing the total number of hours worked (i.e. 192) by the total number of 24-hour periods during the reference period, excluding the weekly rest period (i.e. 24). Therefore average normal hours of work for the night worker = 192/24 = 8 hours, and therefore the eight-hour limit in any 24-hour period has been observed.

FORMULA 2

An alternative is to exclude all 24-hour periods during which the worker does not work, rather than just the 24-hour weekly rest period entitlement. The total number of 24-hour periods would depend upon how these periods were themselves measured. If each 24-hour period began when the worker actually started work, the 24-hour periods would be measured from 9 pm Monday to 9 pm Friday. There would be four 24-hour periods. The total number of 24-hour periods during which the night worker actually worked over the four-week reference period would be 4 x 4 = 16; the average normal hours of work for the night worker would therefore be 192/16 = 12 hours, and therefore the night time limit has not been observed.

FORMULA 3

Formulas 1 and 2 represent the two extremes; if the ECJ were to favour Formula 2 in principle, Member States would probably be provided with a margin of discretion in determining when the 24-hour periods started. Formula 3 is therefore a variation of Formula 2, and it would normally result in a lower average (although it would be higher than that under Formula 1). This Formula provides the Member State with a margin of discretion to lay down when the 24-hour period would start, e.g. "any period of 24 hours beginning at midnight". In this instance, the number of 24-hour periods would be:

Monday (9 pm to 12 pm)

Tues - Thur (12 pm to 9 am; and 9 pm to 12 pm)

Fri (12 pm to 9 am)

Therefore there are five 24-hour periods during which the worker performs night work (as opposed to four under Formula 2). The total number of 24-hour periods worked during the reference period would be increased from 16 to 20 (i.e. 5 x 4). The average normal hours of work for the night worker in any 24-hour period would be 192/20 = 9.6 hours, and therefore the limit has still not been observed. However it is closer to the limit than under Formula 2. If the daily hours of work were reduced to 10 (e.g. 10 pm to 8 am), then the total number of hours worked during the reference period = 10 x 4 x 4 = 160 hours. The average is arrived at by dividing this figure by the total number of 24-hour periods during the reference period (i.e. 20) and therefore the average = 160/20 = 8 hours; the limit has been observed. However the average under Formula 2 = 160/16 = 10 hours and therefore the limit has still not been observed.

Top | Contents | Biliography

The ECJ's method of interpretation

The ECJ's broad interpretation as to what constitutes the health and safety of workers has been discussed above (in UK v Council of the European Union Case C-84/94). With regard to specific provisions of the Directive, the ECJ in this case referred to the recitals to the Directive's preamble, and noted that:

"29. ... the eleventh recital states that 'research has shown that ... long periods of night work can be detrimental to the health of workers and can endanger safety at the workplace' ...".

In this case, the UK actually conceded that scientific evidence supported the premise that there may be some causal connection with night working and detriment to the health and safety of workers (at para 68).

In the light of the above discussion, it is arguable that because the aim of the Directive is to provide enhanced protection for night workers, the ECJ will favour Formulas 2 or 3, rather than Formula 1, because to favour Formula 1 would in effect equalise the protection for night workers to that which applies to all workers under art 6 (unless the ECJ distinguishes between "normal hours of work" and "working time" as previously discussed).

However, one factor which militates against the adoption of Formulas 2 and 3 is that art 16(3) explicitly provides that the 24-hour weekly rest period (to which a worker is entitled under art 5) has to be excluded from the calculation, whereas it is silent upon whether or not other 24-hour periods during which the worker does not work are also to be excluded. It is quite clear that the worker would not be working when taking his weekly rest period entitlement and therefore omitting to mention the exclusion of other periods might lead to the conclusion that such periods are not to be excluded. But if this is the case, as discussed above, a night worker would not be receiving any additional protection over and above that afforded to other workers; Formula 1 in effect provides for a 48-hour weekly limit. If the Directive was intended to have this effect then it could be argued that the language used in art 8 would have been similar to that in art 6; i.e. it would have stated that the average would be measured over "each seven-day period" rather than "in any 24-hour period". One difference between the application of arts 6 and 8 is that the reference periods during which the averages are calculated may differ. It would be open to a Member State to adopt a four-month reference period in respect of the weekly working time limit but to have a shorter reference period for night workers. However, a Member State would be at liberty to lay down identical reference periods in respect of both limits (as in Britain), and therefore the night worker would not receive any additional protection.

Britain has, in essence, adopted Formula 1 for calculating the average normal hours of work (reg 6(5)). Regulation 6(3) provides for a night worker's average "normal hours of work" to be calculated over a reference period of 17 weeks. A relevant agreement may stipulate that this should be measured over successive periods of 17 weeks (reg 6(3)(a)), otherwise it will be any period of 17 weeks during the worker's employment, in effect a rolling reference period (reg 6(3)(b)). It is submitted that Formula 3 will be preferred by the ECJ when the issue comes before it and therefore in this respect the UK has failed to implement the provisions of the Directive correctly.

Top | Contents | Biliography

The effect of the Formulas on shift patterns

It has been demonstrated that the choice of formula would have an impact upon the employer's prerogative to organise night work, to varying degrees. As discussed above, the Directive and Britain's implementing Regulations provide that the length of night work restriction applies, inter alia, to a worker who "as a normal course" works at least three hours of his daily working time during night time, and could therefore apply to a shift worker who did not otherwise work permanent nights.

Hall, Lister and Sisson (1998, pp 44-45) review the different modes of shift working. For example, a two-shift system could provide for a rotating shift pattern, over a five-day week, working one week day shifts (e.g. 9 am to 5 pm) followed in the second week by night shifts (e.g. 10 pm to 6 am). This pattern of work has been "fairly common across UK industry for many years ... in industries such as engineering, where continuous production is not required" (p 44). Such a pattern of work would qualify the worker to be designated as a night worker and therefore the "normal hours of work" should not exceed an average of eight hours in any 24-hour period, whether or not during a particular 24-hour period the worker performed all work outside of "night time".

In this example, the "normal hours of work" over a two-week period are 40 (i.e. 9 am to 5 pm = 8 hours x 5 days) + 40 (i.e. 10 pm to 6 am = 8 hours x 5 nights) = 80 hours. As discussed above, it is unclear whether or not break periods etc. are included within the calculation of "normal hours of work", but for the purpose of this discussion it shall be assumed that breaks etc. are included. If a four-week reference period has been adopted by the Member State concerned, the calculation of the average normal hours of work would be:

FORMULA 1

(a) Total normal hours of work during the four-week reference period = 80 x 2 = 160

(b) Total number of 24-hour periods (excluding the 24-hour rest period entitlement under art 5) = 6 x 4 = 24

(c) average normal hours of work in any 24-hour period over the four-week reference period = (a) / (b) = 160/24 = 6.67 hours, and therefore the limit has been observed.

FORMULA 2

(a) Total normal hours of work during the four-week reference period = 80 x 2 = 160

(b) Total number of 24-hour periods:

Weeks 1 and 3 (Mon 9 am - Sat 9 am) = 10

Weeks 2 and 4 (Mon 10 pm - Sat 10 pm) = 10

Total number of 24-hour periods = 20

(c) average normal hours of work in any 24-hour period over the four-week reference period = (a) / (b) = 160/20 = 8 hours, and therefore the limit has been observed.

FORMULA 3

(a) Total normal hours of work during the four-week reference period = 80 x 2 = 160

(b) Total number of 24-hour periods:

Weeks 1 and 3 (Mon - Fri 9 am - 5 pm) = 10

Weeks 2 and 4 (Mon 10 pm - 12 pm; Tue - Fri 12 pm - 6 am and 10 pm - 12 pm; Sat 12 pm - 6 am) = 12

Total number of 24-hour periods = 22

(c) average normal hours of work in any 24-hour period over the four-week reference period = (a) / (b) = 160/22 = 7.27 hours, and therefore the limit has been observed.

A more complex seven-day two-shift continuous system where there are two 12-hour shifts (7 am to 7 pm; and 7 pm to 7 am) has "become more common as basic weekly hours have been reduced" (Hall, Lister, Sisson 1998 p 44). A typical pattern would be based on a four-crew rota over a four-week cycle, for example:

Crew A:

	MON	TUE	WED	THUR	FRI	SAT	SUN
WK 1	Rest	Rest	Day	Day	Rest	Rest	Rest
WK 2	Night	Night	Rest	Rest	Day	Day	Day
WK 3	Rest	Rest	Night	Night	Rest	Rest	Rest
WK 4	Day	Day	Rest	Rest	Night	Night	Night

If a four-week reference period has been adopted by the Member State concerned, the calculation of the average normal hours of work (including any breaks etc within the scope of "normal hours of work") would be:

FORMULA 1

(a) Total normal hours of work during the four-week reference period = 14 x 12 = 168

(b) Total number of 24-hour periods (excluding the 24-hour rest period entitlement under art 5) = 6 x 4 = 24

(c) average normal hours of work in any 24-hour period over the four-week reference period = (a) / (b) = 168/24 = 7 hours, and therefore the limit has been observed.

FORMULA 2

(a) Total normal hours of work during the four-week reference period = 14 x 12 = 168

(b) Total number of 24-hour periods:

Week 1 (Wed 7 am - Fri 7 am) = 2

Week 2 (Mon 7 pm - Wed 7 pm; Fri 7am to Mon 7 am) = 5

Week 3 (Wed 7 pm - Fri 7 pm) = 2

Week 4 (Mon 7 am - Wed 7 am; Fri 7pm to Mon 7 pm) = 5

Total number of 24-hour periods = 14

(c) average normal hours of work in any 24-hour period over the four-week reference period = (a) / (b) = 168/14 = 12 hours, and therefore the limit has not been observed.

FORMULA 3

(a) Total normal hours of work during the four-week reference period = 14 x 12 = 168

(b) Total number of 24-hour periods:

Week 1 (Wed - Thur 7 am - 7 pm) = 2

Week 2 (Mon 7 pm - 12 pm; Tues 12 pm - 7 am and 7 pm - 12 pm; Wed 12 pm - 7 am; and Fri - Sun 7 am - 7 pm) = 6

Week 3 (Wed 7 pm - 12 pm; Thurs 12 pm - 7 am and 7 pm - 12 pm; Fri 12 pm - 7 am) = 3

Week 4 (Mon - Tues 7 am - 7 pm; Fri 7 pm - 12 pm; Sat - Sun 12 pm - 7 am and 7 pm - 12 pm; Mon 12 pm - 7 am) = 6

Total number of 24-hour periods = 17

(c) average normal hours of work in any 24-hour period over the four-week reference period = (a) / (b) = 168/17 = 9.88 hours, and therefore the limit has not been observed, although the excess is significantly less than that under Formula 2.

(e) "All reasonable steps"

Article 8(1) of the Directive was implemented in Britain by reg 6 which requires an employer "to take all reasonable steps", in keeping with the need to protect the health and safety of workers, to ensure that the "normal hours of work" of a night worker do not exceed the limit of an average of eight in any 24-hour period. Article 8(1) of the Directive appears to be stricter in that it requires Member States to take the necessary measures to ensure that "normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period"; there is no provision for an employer to argue that "all reasonable steps" have been taken to ensure that the hours of the night worker do not exceed this limit.

A similarly worded provision in respect of the weekly working time limit is contained in reg 4(2). However, in Barber and others v RJB Mining (UK) Ltd IRLR [1999] 308 the High Court held that reg 4(2) imposed a separate and distinct obligation on the employer, which was only justiciable in the manner provided for in the Regulations. It was therefore a qualified obligation and different to the mandatory obligation of reg 4(1) that an employee should work no more than an average of 48 hours in any week during the reference period. By analogy, a similar construction could be applied to regs 6(2) and 6(1), and if UK courts and tribunals interpret the regulation in this way there will be no conflict between it and the Directive.

Top | Contents | Biliography

Conclusion

The Working Time Directive marks a new era in the organisation of working time in the UK. Throughout the deregulatory years of the 1980s and 1990s, successive Conservative Governments repealed the vast majority of provisions regulating working time practices, albeit there were few.

In interpreting the Directive, it has been argued that the ECJ will bear in mind the nine principles set out in the Framework Directive, and that employers will be under an obligation to include the organisation of working time within their risk assessments, given the ECJ's broad definition of "health and safety" in UK v Council of the European Union C-84/94.

In considering the scope of "working time" within the meaning of art 2(1) of the Directive, it was argued that where the Member State concerned decides to implement such by reliance upon a national practice, such national practice must cover all workers within that State and the national practice must obviously be compatible with the scope of "working time" as defined in the Directive. To the extent that this is not the case in Spain, it is in breach of the Directive.

The definition of "working time" within art 2(1) of the Directive comprises of three conditions. The point at issue is whether those conditions are cumulative or disjunctive. If they are read conjunctively, then time spent on-call, when not actually working, will be excluded from the scope of "working time". This article has argued that in pursuance of the general objective of the Directive, and given the broad definition of "health and safety" and "working environment" adopted by the ECJ in UK v Council of the European Union C-84/94, the ECJ will prefer a disjunctive reading of the conditions. In this situation whether or not time spent on-call (at the workplace, or away from it) comes within the scope of "working time" will depend upon the "degree of control" the employer exercises over the worker. If this control is sufficiently high, then the worker would be "at the employer's disposal" and therefore such time would come within the scope of "working time" even though the worker was not actually working. To the extent that the British Regulations apply a conjunctive reading of the conditions, this constitutes inadequate implementation of the Directive.

The definition of "night worker" has been considered, and in particular the nature of the phrase "as a normal course", within the meaning of art 2(4)(a) of the Directive. It was submitted that this phrase will bring within the scope of "night worker" those who work nights as a regular feature; it does not require night shifts to be worked exclusively or even predominantly. The British Regulations could be interpreted thus, and therefore they would be compatible with the Directive on this point.

What constitutes the "normal hours of work" for a night worker was then discussed, and in particular whether or not such hours included overtime. It was submitted that overtime should be included within this calculation, given the Directive's objective of providing a higher level of protection to night workers. In those situations where overtime is expressly excluded from the calculation, the British Regulations are inadequate.

The final substantive issue concerned the calculation of the average normal hours of work. Three possible formulas could be applied to calculate the average. Britain's implementing legislation has adopted the formula that affords the least level of additional protection to the health and safety of night workers. In practice, the British formula provides the night worker with no added health and safety protection to that which is afforded to workers generally through the 48-hour maximum weekly limit, unless the ECJ distinguishes between "normal hours of work" and "working time". It was submitted that the ECJ would favour one of the alternative formulas which provides the night worker with additional protection, and therefore to this extent the British Regulations fail to correctly implement the Directive.

In its Consultation Document, the UK Government stated that it considered the Directive "to be an important addition to health and safety protection for workers". Although it favoured "maximum flexibility in implementation" it did not believe this should be "at the expense of fair minimum standards and the proper protection of workers from risks of excess working time leading to stress, fatigue and risks to health and safety" (DTI Consultation Document URN 98/645 1998 para 8). However, it has been argued in this article that the ECJ will favour a broad interpretation of the Directive's provisions to promote its overriding aim of protecting the health and safety of workers, and that the British Regulations are defective in a number of important respects. It is submitted that not only will the ECJ interpret the Directive's provisions in this manner but that it should do so. Although at its inception the Community was essentially economic in nature, it has evolved to embrace a social policy. The Directive's contribution to the EC's social programme is recognised in the recitals to its preamble where it is stated that it is "a practical contribution towards creating the social dimension of the internal market". Given the competing interests of the various policies of the Community, the ECJ should interpret social policy provisions in accordance with the aims and objectives of such provisions even if it might impinge upon the fundamental economic freedoms of the Community. The ECJ has its own part to play in the development of social policy throughout the Community by interpreting provisions of employment-related Directives broadly in favour of the rights of workers, raising their level of protection across the Community and thus acting as a counteracting force against a Community of fragmented workers' rights where businesses relocate to Member States which provide a low level of worker protection.

Some of the issues discussed in this article will be resolved when the ECJ delivers its judgment in the Spanish case; others will remain unresolved until subsequent referrals are made to it from national courts. The scene is set for a lengthy debate.

Top | Contents

Bibliography

Barnard, C (1999) 'The Working Time Regulations 1998' 28 Industrial Law Journal 61

Bercusson, B (1996) European Labour Law (London: Butterworths)

Department of Trade and Industry Consultation Document URN 96/1126 (1996) A Consultation Document on Measures to Implement Provisions of the EC Directive on the Organisation of Working Time (Sevenoaks: DTI Publications)

Department of Trade and Industry Consultation Document URN 98/645 (1998) Measures to Implement Provisions of the EC Directive on the Organisation of Working Time and the Protection of Young People at Work - Public Consultation (Sevenoaks: DTI Publications)

Department of Trade and Industry Guidance URN 98/894 (1998) Guide to Working Time (Sevenoaks: DTI Publications) Full text at: <http://www.dti.gov.uk/ER/WTR/index.html>

Dunkley, J and Whittle, R (1997) 'The Social Chapter in the UK: Implementation through Article 118a?' August/September 1997 Business Law Review 201

Edwards, M (1998) 'In Search of Flexible Working Arrangements' February 1998 Business Law Review 27

Hall, M, Lister, R and Sisson, K (1998) The New Law on Working Time - Managing the Implications of the 1998 Working Time Regulations (London: Eclipse Group Ltd, and Coventry: Industrial Relations Research Unit)

IDS Supplement (1999) Working Time Regulations 1998 (London: IDS)

Johnson, J (1998) 'Implementation of the Working Time Directive - Will it have an Impact on the SME?' October 1998 Business Law Review 231

Phillips, B and O'Brien, M (1999) 'The Working Time Regulations' February 1999 Legal Action 18

Pitt, GJ and Fairhurst, J (1998) Working Time (London: Blackstone Press Limited)

Szyszczak, E (1999) 'The Working Environment v. Internal Market' 24 European Law Review 196

Unison Health Care (1998) Implementation of the Working Time Regulations - Initial Advice on the General Whitley Council Agreement (Woolwich: Unison Health Care)

Wooldridge F (1997) 'The Decision of the ECJ on the Working Time Directive' February 1997 Business Law Review 29

Footnotes

(1) Full text at: <http://www.incomesdata.co.uk/wtimedir.htm>
(2) As required under the art 118a [now art 137] legislative base. See Wooldridge (1997) for a critical review of the ECJ's judgment and its implications for the interpretation of the Directive.
(3) full text at <http://www.hmso.gov.uk/si/si1998/19981833.htm>
(4) full text at <http://www.dti.gov.uk/ER/WTR/index.html>
(5) The lunch break (whether or not there is a right to be paid under the worker's contract of employment) may indeed satisfy the worker's right, under art 4, to a break where the working day is longer than 6 hours.
(6) Pitt and Fairhurst have also considered the various statutory rights to time off work (for example the right to time off work for trade union activities pursuant to Trade Union and Labour Relations (Consolidation) Act 1992 ss 168-170) and questioned whether or not these should also constitute "working time" within the meaning of the Directive, despite all three conditions not being satisfied (1998 pp 37-38). But this is less to do with the organisation of working time and therefore will not be considered further in this article. Also see Bercusson (1996 p 308). For a consideration of flexible working arrangements, and in particular zero hours contracts (which are a form of on-call working), see Edwards (1998).
(7) Dunkley and Whittle have analysed the ECJ's decision to assess its impact upon the scope of "health and safety" and "working environment" within the former art 118a EC Treaty [now art 137] (1997 pp 202-203).
(8) Breaks provided pursuant to art 4 would be deducted from "working time" provided none of the three conditions were satisfied. Therefore, for example, a 10-minute break where the worker could not be called upon to work by the employer, would fall outside the scope of "working time".
(9) With the exception of breaks etc. where none of the three conditions are satisfied (see footnote 5).
(10) A Small and Medium Enterprise (SME) is defined as an employer with fewer than 250 workers. SMEs account for 99% of businesses and provide one third of all jobs within the EU - see Johnson (1998) p 231).
(11) Johnson reviews the impact of the Directive on SMEs within the UK. She concludes that " ... the new legislation will increase staff costs for the SMEs ... However, those employees who are covered by the new proposals will enjoy the benefit of increased protection for their health and safety in a working environment, which is the very objective the legislation was designed to achieve" (Johnson 1998, p 237). Szyszczak has noted that in UK v Council of the European Union Case C-84/94 the ECJ "confirms the lex specialis nature of Article 118a E.C. and has opened the way for development of social policy measures without these being subordinated to pure economic measures" (Szyszczak 1996, p 196).
(12) IDS Supplement recognises that "there is a significant difference between a worker who is on-call but otherwise free to pursue his or her own activities and a worker who is on-call and contractually obliged to be present on the employer's premises whether asleep or awake" (1999 at p 7). It observes that not to regard sleep-in duties as "working time" would run counter to the Directive's objectives. Barnard goes further and argues that the conjunctive/disjunctive distinction is "of particular significance to 'on-call workers' since, if read disjunctively, time spent at home waiting for the phone to ring would constitute working time." (1999 p 70). This article argues in favour of a disjunctive reading of the conditions, but opposes Barnard's proposition that time spent "waiting for the phone to ring" would constitute "working time".
(13) Rather than "workers" generally, which has a broader scope (for a commentary on the differentiation between "employee" and "worker" see Pitt and Fairhurst 1998 pp 22-28).