Commission refers UK working time rules to ECJ

In February 2004, the European Commission decided to launch a legal case against the UK at the European Court of Justice (ECJ), concerning alleged deficiencies in the UK’s transposition of the EU working time Directive.

Following complaints about various aspects of the UK’s Working Time Regulations by the trade union Amicus, the European Commission has been pursuing infringement proceedings against the UK concerning its implementation of the EU working time Directive (93/104/EC).

In initial correspondence, the UK government had the opportunity to submit its observations on the Commission’s concerns. Certain amendments to the UK legislation were reportedly prompted by this process: the Working Time (Amendment) Regulations 2002 included changes to the calculation of night working hours so as to include overtime, in order to comply with the Directive’s requirements.

In May 2003, the Commission sent the UK a 'reasoned opinion' under Article 226 of the EC Treaty, highlighting a number of remaining problem areas, to which the UK government replied at the end of June 2003. The Commission has now informed Amicus that, 'having analysed carefully the reply of the British authorities', it decided on 3 February 2004 to initiate legal action against the UK at the European Court of Justice (ECJ), challenging two particular aspects of the UK legislation:

• the amendment of the UK’s Working Time Regulations in December 1999 to exclude from the calculation of working hours those elements of a worker’s working time that are not measured or predetermined; and

• employers’ responsibility regarding workers’ rest periods.

The December 1999 change to the Regulations (UK0002154N) extended the 'unmeasured working time' derogation provided for by Article 17(1) of the Directive to cover 'partly unmeasured working time'. This change applied to workers who have an element of their working time pre-determined, but otherwise decide themselves how long they actually work. Under the amended Regulations, any time spent on such additional work (effectively voluntary, unpaid overtime) does not count towards the weekly working time or night work limits. The Commission has not publicly spelled out the specific grounds on which it considers that this provision is incompatible with the Directive, but it will presumably argue that the Article 17(1) derogation is not applicable to 'partly unmeasured working time'. Roger Lyons, joint general secretary of Amicus, said in a statement: 'This has left 3 million workers open to pressure from their employer to show 'commitment' by volunteering their family time without signing a formal opt-out from the maximum 48-hour week.'

On the second point, the Commission has stated that the guidance issued by Department of Trade and Industry on the application of the Working Time Regulations '[seems] to encourage a practice of non-compliance with the provisions of the Directive' as regards rest periods by stating that 'employers must make sure that workers can take their rest, but are not required to make sure they do take their rest'. The UK Regulations replicate the Directive’s requirements in this area and provide that workers are entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period, a rest break (specified as 20 minutes by the UK Regulations) where the working day is longer than six hours, and a minimum uninterrupted weekly rest period of 24 hours plus the 11 hours’ daily rest. Again, the specific grounds on which the Commission considers that the UK is in breach of the Directive remain to be seen but may concern the effectiveness of the application of UK legislation concerning rest periods. According to the Trades Union Congress, surveys show that as few as 7% of UK employees are aware of their legal rights to rest breaks.

If the ECJ finds that the UK legislation transposing the working time Directive is deficient, further changes to the law in this area will become necessary. However, the significance of a ruling by the ECJ against the UK’s provisions on partly unmeasured working time will remain limited for as long as the UK can continue to allow employees to opt out of the 48-hour ceiling on weekly working hours altogether (UK0401104F and EU0402203F).