UK guidance on rest breaks must be changed
Commission of the European Communities v United Kingdom, ECJ, 7 September 2006
The Working Time Regulations 1998 (WTR) - introduced to implement the EC Working Time Directive - entitle workers to certain minimum rest periods. The Department of Trade and Industry's (DTI) official guidance asserts that employers must make sure that staff can take their rest, but are not required to make sure they do take their rest.
The European Commission brought a legal challenge to these guidelines, arguing that they "endorse and encourage a practice of non-compliance with the requirements of the directive".
The European Court of Justice (ECJ) agreed that the UK had failed to meet its obligations under the directive. In letting it be understood that employers were under no obligation to ensure that workers actually exercised their rights, the guidelines were liable to render those rights meaningless, it said. It did acknowledge, however, that as a general rule, employers need not force their workers to claim the rest periods due to them.
The DTI guidance has not yet been amended. In the meantime, employers need to know how to interpret this judgment.
Some help can be found in the opinion of the advocate-general, which was given in advance of this ruling and relied on by the ECJ. Her view was that it is not enough for employers to withdraw into a passive role, granting rest periods only to those who expressly request them. Instead, they must create an environment that encourages workers to observe the minimum rest periods. This means that employers should ensure rest breaks are scheduled. Also, written policies should set out workers' entitlements to breaks and stress that breaks have to be taken. Pressure deterring workers from taking their breaks, either from the employer through performance targets, or from peers who do not take their entitlement, must be resisted. So those who pay by reference to hours worked or output are likely to be expected to do more than those who do not, given the incentive to earn more by foregoing breaks.
For more on this case, see the October issue of Employers' Law magazine.