Working time blow for transport employees

Are
non-mobile workers in the transport sector covered by the Working Time
Regulations? Christopher Mordue looks at the implications of a recent decision
from Europe.

Clarification
on the important issue of whether the transport exclusions of the Working Time
Regulations apply to all workers in the sector moved a step closer to
resolution with the delivery of the Advocate-General’s opinion, on Tuesday 8
March 2001, in a case referred to the European Court of Justice by the UK
Employment Appeal Tribunal. This affects a significant number of workers in the
UK.

The
case – Bowden v Tuffnels Parcels Express Limited – was brought by three part-time
clerical employees of a parcel delivery company. They complained that their
employer’s practice of only allowing them unpaid holiday leave was in breach of
the Working Time Regulations 1998, which gives workers the right to four weeks’
paid annual leave. The Regulations were introduced in October 1998 to implement
a 1993 European Directive, and in addition to paid annual leave, confer
entitlements to minimum rest periods and breaks and impose restrictions on
average weekly working time and hours of night work.

The
employer in this case argued that all workers in the transport sector – both
mobile and non-mobile – are wholly exempt from the scope of the Regulations and
the Directive, which both state that "air, rail, road, sea, inland
waterway and lake transport" are excluded sectors of activity. However,
the employees argued that the correct interpretation was that in the excluded
sectors of activity related not to the employer’s business, but rather to the
types of work which the individual workers were engaged. As the applicants were
clerical staff, they were entitled to benefit from the protection granted by
the Regulations.

The
employer’s argument succeeded before an employment tribunal. On appeal to the
Employment Appeal Tribunal, the EAT considered that a literal interpretation of
the Directive suggested that the workers were not covered by the Regulations.
However, they thought that this was an entirely illogical result given the
stated aims of the Working Time Directive and favoured a more purposive
approach which would exclude workers from that protection only if the activity
for which they were engaged directly involved transport. However, the
legislative history of the Directive and the subsequent amendments to it
pointed against this purposive approach. In particular in August 2000, the
Working Time Directive was amended to include non-mobile workers in the
transport sector and to extend some protection even to mobile workers. These
amendments have to be introduced into UK law by 1 August 2003. The Employment
Appeal Tribunal considered that these legislative amendments would not have
been adopted if non-mobile workers in the transport sector were already covered
by the Directive. Nevertheless, they referred the issue to the European Court of
Justice for determination.

The
Advocate-General’s opinion supports the literal interpretation of the Directive
and Regulations. Whether a worker is engaged in an excluded sector of activity
has to be determined by the economic activity of the employer and not the work
carried out by the worker. However, the Advocate-General had considerable
sympathy with the EAT’s view that this was an undesirable and illogical result.
Indeed, he did consider whether the exclusion in the Directive was illegal as
contradicting the "fundamental social right" to paid holiday, but
ultimately considered that this was not the case.

The
final European Court of Justice ruling in this case is expected later this
year. Typically, the ECJ reaches similar conclusions as the Advocate-General’s
opinion and therefore it would appear likely that all workers in the transport
sector will be found to be excluded from the scope of the Regulations.
Interestingly, the workers in this case could now invoke the Part-time Workers
(Prevention of Less Favourable Treatment) Regulations 2000 to challenge the
non-payment of holiday pay by their employer, on the grounds that this is
discriminatory against them on the grounds of their part-time status.

This
is a very important case about the true scope of the Working Time Regulations.
It would appear that non-mobile workers of the transport sector will have to
wait for some time before they benefit from the full protection of the Working
Time Regulations. However, this literal approach clearly creates anomalies.
Office based workers for transport companies are not covered by the
Regulations, but a retail company’s transport staff will would seem to be
covered. This appears entirely illogical. The Regulations have been heavily
criticised by employers and the CBI and this case illustrates the very real
confusion that exists about how these Regulations apply.

By
Christopher Mordue, associate at Pinsent Curtis Biddle www.pinsents.com

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