Entitlement to rest periods during working hours is recognised as a basic right of workers in the European Union. The Charter of Fundamental Rights of the European Union stipulates: ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’ (Article 31(2)).
a minimum daily rest period of 11 consecutive hours a day;
a rest break where the working day is longer than six hours;
a minimum rest period of one day a week.
Daily rest periods
The stipulation of a minimum 11 hours of rest in a 24-hour period implies potentially a lawful 13 hour working day. However, this is unlikely to be allowed by reason of other provisions of the directive.
First, the imposition of a minimum 11 hours of rest (implying a maximum working day of 13 hours) is supplemented by a general provision, which reads: ‘Member States shall take the measures necessary to ensure that an employer who intends to organise work according to a certain pattern takes account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time’.
This principle of the ‘humanisation of work’ and the emphasis in Scandinavian countries on the psychological and social drawbacks of working time, such as monotony, lack of social contacts at work or a rapid work pace, were the inspiration for the Commission’s proposal on working time regulation and here receive explicit recognition. Breaks at work are not aimed solely at avoiding dangers to health and safety: they are to be integrated as a means of humanising work patterns.
The requirement in the directive for rest periods during working hours effectively reduces the maximum 13-hour working day by the amount of the rest periods. It is unclear whether daily breaks for rest count towards daily working hours within the meaning of ‘working time’ as defined in Article 2(1) of the directive. But whether the duration of the working day includes rest periods or not, it cannot be prolonged beyond 13 hours, as this would violate the requirement of 11 consecutive hours of rest.
The minimum EU standard for the duration of the working day is, therefore, 11 consecutive hours of rest, and a maximum 13 hours of work punctuated by at least one long break, or two or more shorter breaks, the intervals being not more than six hours apart. In any case, a working time regime which opted for such a long working day would be constrained by the provisions on maximum hours in a working week.
The Working Time Directive allows for collective agreements to fix or define relevant standards of rest breaks during working hours. The directive gives priority to collective agreements over legislation in determining the EU standard. The EU standard is to be determined by collective bargaining (though without specifying the appropriate level) and, only in its absence, by legislation.
The duration of rest breaks is not indicated, but certain criteria may be expected to emerge following precedents involving the balancing of employer and worker interests in the EC law on indirect sex discrimination (see Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, Case 170/84). These criteria might require that the duration of the rest period responds to the human needs of the worker, and is appropriate, having regard to the length of the preceding and subsequent work periods. The criteria take into account all the different possibilities of organising the working time of the workforce as a whole so as to provide adequate rest periods for all workers.
The directive obliges employers ‘who intend to organise work according to a certain pattern take account of the general principle of adapting work to the worker... especially as regards breaks during working time’. Member States must require employers to organise working time taking into account this principle of the humanisation of work. If it can be shown that an organisation of working time, including work breaks, would ameliorate these problems, it is arguable that the employer has at least to justify not introducing them. Daily rest breaks, which do not respond to the worker’s human needs and which the employer cannot justify, violate the EC standard. Member State legislation which does not secure that such rest breaks are provided would arguably be in violation of the duty to implement the directive’s requirements, and state liability might be imposed to compensate the workers affected (Francovich and Bonfaci v. Italian Republic, Cases 6/90 and 9/90 ).
Weekly rest periods
The Working Time Directive stipulates a standard of weekly rest in Article 5: ‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3’. The weekly rest period must follow on from one of the 11 hour daily rest periods, so as to constitute a continuous break of 35 hours at least once a week, averaged over more than 14 days.
There is an ambiguous provision tacked on to the end of Article 5: ‘If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied’. The meaning of this exception is not clear. There are two possibilities. Each eliminates one of the qualifications attached to the provision in the first paragraph: either, that 24 hours be added to the 11 hours of daily rest; or that the 24 hours be without interruption. Most likely, it refers to the requirement that the 24 hour weekly rest period be connected to a previous 11 hour rest period, so as to constitute a solid block of 35 hours rest per week. Apparently, a minimal 24 hour period may be justified in some circumstances. The only other possibility would seem to be that the provision for a 24 hour rest period is not to be a consecutive period, but is to be added to the 11 hours minimum daily rest and distributed throughout the week, so that there is no consecutive 24 hour period.