Working time, rest breaks and holidays

Statutes fixing wages and/or hours of work have existed in this country since the 14th century (the 1349 Ordinance of Labourers and the 1351 Statute of Labourers both made rules on the subject). The 1998 Working Time Regulations, as amended, are therefore just the latest set of rules. They were made only after the UK lost a legal battle with the European Commission, the latter having somewhat cheekily, after opposition from the UK in the early 1990’s, switched the then proposed Working Time Directive from being introduced as a social policy measure requiring unanimity to introducing it as a health and safety measure which required only a majority vote to be enforceable on all Member States.

The Working Time Regulations continue to give rise to problems, notably in relation to rest breaks and holiday entitlement. Two recent cases are noteworthy.

In one, the Northern Ireland Court of Appeal has ruled that a nurse whose rest breaks were taken on site but away from the place where she performed her duties, and during which she was not to be interrupted save in exceptional circumstances, did count as rest breaks for the purposes of the Regulations. The nurse had argued that the rest breaks counted as time spent on call which, following a series of rulings by the European Court of Justice, would count as working time. Those who would like to read the full judgment can click here on Martin v Southern Health and Social Care Trust.

In the second case the Inner House of the Scottish Court of Session (equivalent to the English Court of Appeal) has held that there is no rule that entitlement to annual holiday must come out of working time. Any other conclusion could produce absurd results in the case of “shut-down trades” and of teachers who, for example, could insist on taking holiday during term time if the Regulations were interpreted to mean that a worker has the right to insist on holidays being taken during working time. Similarly, if that were the correct interpretation professional footballers would be entitled to take annual leave during the football season rather than during the summer break.

This case was brought not by teachers or professional footballers but by offshore workers on oil and gas rigs in the North Sea. Typically they worked 2 weeks offshore, followed by a two week “field break” on land. Their employer (which, incidentally, was the company involved in the BP Gulf of Mexico disaster earlier in 2010) required them to take their annual paid holiday during these “field breaks”. The effect was that the workers would work off shore for a full 26 weeks each year as had been originally intended. The workers argued, however, that on a correct interpretation of the Working Time Regulations they were entitled to take their annual leave out of the time when they would otherwise be at work – the effect being, in essence, that they would work off shore for only 22 weeks each year. Although they won at the original tribunal, the workers lost this argument both in the EAT and most recently at the Court of Session.

Interestingly, given the history noted above of how the EU Working Time Directive came to be passed, one of the points on which the Court of Session focussed was that the Directive was a health and safety measure. As such it was designed to ensure that workers get sufficient rest. Bearing this in mind the Court of Session ruled that on a proper interpretation of the British Regulations annual holiday cannot come out of “rest periods” as defined but can come out of (in this case) field breaks and that this is consistent with the EC Directive being a health and safety measure.

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Author chris swindells

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