More legal action over working time rules

Litigation on working time issues continued to make the UK headlines during February and March 1999. Key cases concerned the direct effect of provisions of the EU working time Directive despite the delay in UK transposition, and the ability of workers to refuse to work more than a 48-hour average working week.

Following the judicial review proceedings brought against the UK working time Regulations in January by the film, broadcasting and theatre trade union BECTU (UK9901176N), further litigation over working time issues has been reported.

In February, the Employment Appeal Tribunal (EAT) ruled in the case of Gibson v East Riding of Yorkshire Council that the provision in the EU working time Directive (93/104/EC) giving workers the right to four weeks' paid annual leave has "direct effect" under EU law. In other words, this provision of the Directive was considered sufficiently precise and unconditional to be directly enforceable by employees of "emanations of the state," which include local authority employees. The EAT ruled that the employee concerned - a council-employed swimming instructor during school term-time who is not paid during school holidays - should have been entitled to four weeks' paid annual leave from the due date for implementation of the Directive (23 November 1996), even though the UK working time Regulations implementing the Directive did not come into force until 1 October 1998 (UK9810154F) and limited workers' initial statutory entitlement to three weeks' paid annual leave.

However, in a further case, Cawley and others v Hammersmith Hospital NHS Trust, the EAT declined to rule on whether the Directive's provisions concerning minimum daily rest periods and the maximum length of night work also had direct effect, because of ambiguities in the definition of what constitutes "working time" (ie when a worker "is working, at the employer's disposal and carrying out his activity or duties in accordance with national laws and/or practice").

In March, five pit deputies, supported by their union NACODS, won a case in the High Court against their employer RJB Mining concerning the application of the 48-hour working week. A number of pit deputies had been required by the company to work longer than the maximum average of 48 hours per week, despite having refused to sign individual "opt-out" agreements. The judge granted a declaration to the effect that pit deputies who had already worked the maximum permitted hours before the expiry of the 17-week reference period laid down by the UK Regulations were entitled to refuse to carry on working until their average weekly hours came down to the required level. The outcome was welcomed by unions but employers' groups expressed concern that the ruling could create staffing rigidities and jeopardise productivity. The company has been given leave to appeal.