Working Time: Rest Breaks
In the case of Maio Marques da Rosa v Varzim Sol, the question of when a worker is entitled to take their weekly 24-hour rest break was considered.
Under the EC Working Time Directive (2003/88) (the WTD) a worker is entitled to a 24-hour uninterrupted rest period “per each 7-day work period”. The Directive does not stipulate when the 24-hour rest period must be given.
The UK’s Working Time Regulations 1998 (WTR) were brought in to implement the Working Time Directive. Accordingly, all workers in the UK are entitled to a 24-hour rest period every 7 day period or a 48 hour rest period every 14 day period.
European case law on the Working Time Directive is relevant to UK employment law because of the direct effect that such law has on member states, meaning that an individual in any member state can, in certain circumstances, directly rely on European law to challenge the national law of a member state.
This case concerned a Portuguese employee who was made redundant from the casino where he worked. The casino operated every day of the week, 364 days of the year. He brought a complaint against his former employer that he was not given a 24-hour rest period after working 6 consecutive days and he argued this was contrary to the Working Time Directive. His former employer argued that the Working Time Directive did not stipulate that a 24-hour break had to be given after the 6th consecutive day of working. The case went to the Court of Appeal in Portugal who referred it to the European Court of Justice (CJEU).
The CJEU held that there was no requirement under the Working Time Directive to provide a 24-hour rest period no later than the day after a period of 6 consecutive days of working. The CJEU said the two-day rest period could be provided at any time within each 7-day period. Therefore, in principle, the Directive allows a worker to work up to 12 consecutive days if the weekly rest period is granted on the first day of the first seven-day period and the last day of the following seven-day period. This is provided that the other requirements of the Working Time Directive, such as those relating to daily rest and the maximum weekly working time, are satisfied.
Points to Note
The Working Time Directive allows Member States a certain amount of flexibility in how they implement the 24-hour rest period into national law, including that Member States can stipulate a longer period, not exceeding 14 days, within which the 24-hour rest period can be taken. Portugal did not do this, but the UK did. Under UK law, at the employer’s choice, the weekly rest period can consist of two uninterrupted 24-hour rests or one uninterrupted 48-hour rest in every 14-day period.
Some commentators have suggested that the ruling in this case means a worker in the UK can be required to take their 48-hour rest period at the beginning of a 14 day working period and their next 48 hour rest period at the end of the following 14 day period – so that in effect the worker is working 24 continuous days. This would seem a risky approach to take, however, because it is wholly inconsistent with the purpose of the Working Time Directive, which is for the protection of the health and safety of workers.
Action to Take
1. This case is a useful reminder of the rights of workers to rest breaks. In addition to a 24-hour weekly rest period, workers have the right to a minimum rest break of 20 minutes every 6 working hours, a daily rest period of 11 hours and are subject to a maximum working week of 48 hours.
2. These entitlements can be modified in special cases or by collective agreement provided compensatory rest is given. In the case of the 48-hour maximum working week, an individual can “opt out” of this by prior written agreement.
3. Employers must keep records to show that the limits on average working time, night work and provision of health and safety assessments are complied with in relation to individual workers.
4. Failure to comply with the Working Time Regulations can lead to fines and potential tribunal claims from workers.
This article was written and researched by Miranda Amos, Solicitor at our Salisbury office
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