The Directive was transposed into UK law in the Working Time
Regulations in 1998. The law can stay unchanged, but the guidance
must be rewritten to reflect the thinking behind the directive.
The disputed portion of the guidelines concerns the amount of
rest that workers must be allowed to have. The Directive mandates
that workers are entitled to a minimum daily rest period of 11
consecutive hours in every 24-hour period and a minimum
uninterrupted rest of 24 hours in ever seven-day period, plus the
11 hours’ daily rest.
The UK guidelines state that "employers must make sure that
workers can take their rest, but are not required to make sure they
do take their rest". The ECJ ruled that this was contrary to the
Directive.
"The guidelines are clearly liable to render the rights
enshrined in Articles 3 and 5 of that Directive meaningless and are
incompatible with the objective of that directive, in which minimum
rest periods are considered to be essential for the protection of
workers’ health and safety," said the ruling.
"The United Kingdom of Great Britain and Northern Ireland has
failed to fulfil its obligations under Articles 17(1), 3 and 5 of
that directive," said the ECJ.
The move was welcomed by Brendan Barber, General Secretary of
the Trades Unions Congress. "Employers will now have to do their
utmost to ensure their staff get the breaks they are entitled to,"
he said. "The Government must now change its guidance on rest
breaks to ensure that workers know their rights and can benefit
from them, and that employers know their responsibilities and meet
them fully.'
Employment law expert Kirsty Ayre of Pinsent Masons, the law
firm behind OUT-LAW.COM, is not so sure that the ruling represents
a major change. "I think that employers are not going to have to
change their practice much," she said. "I don't think that
employers are as a result of this judgment going to force people to
take breaks. I don't think there will be any obligation on them to
do that as long as they ensure that people are entitled to take
breaks if they want them."
Ayre said that the ruling deals with parts of the law which are
not commonly used. "The rest break provisions are enforced by way
of a complaint to an employment tribunal, and we've done a quick
search to see if there are any cases where people have sued their
employers for having been denied rest breaks and there don't appear
to be any reported cases, so I'm not convinced that these
particular provisions of the regulations have led to much
litigation to date," she said.
"This case might raise their profile and potentially lead to
more employees seeking to enforce their rights but I don't think
it's something that employers need to be really worried about,"
said Ayre.
