PIBULJ Articles

Should breach of the Working Time Regulations 1998 give rise to civil liability at common law?

• The case of Sayers v. Cambridgeshire CC was heard before Ramsey J in February 2006. It is of legal interest because Mrs Sayers claimed that she had been injured by overwork which including working long hours – more than 48 hours per week on average.  She claimed damages for breach of statutory duty. One of the questions for the Court is whether the Working Time Regulations 1998 can give rise to civil liability. At the time of writing (23rd June 2006), judgement is still awaited but this is a summary of the argument put forward by the Claimant.

• The legal base of the Working Time Regulations 1998 is the Working Time Directive (93/104/EC) which is a daughter directive of the  Framework (Health and Safety) Directive (89/391/EEC). The legal basis for both these directives is ex-Article 118a EC (“ex-Article 118a”).

• In Case C-84/94 United Kingdom v Council [1997] ICR 443, the ECJ considered, in the context of a challenge against the choice of legal base for the Working Time Directive, the meaning of the expression “safety and health” in ex-Article 118a. It concluded that the phrase should not be interpreted restrictively, and as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment. Thus it covers psychiatric injury.

• The terms “safety” and “health” should have the same meaning in the Framework (Health and Safety) Directive and the Working Time Directive as they do in ex-Article 118a.

• Therefore the ECJ decided that the Working Time Directive is a “health and safety” Directive. This was also the conclusion of the ECJ in Case C-151/02 Landeshauptstadt v. Jaeger [2003] IRIR 804, paragraphs 92 & 93. It follows that any Regulations that purport to implement the Working Time Directive in England and Wales should be interpreted as “health and safety” Regulations.
  
  
• Despite this ruling of the ECJ in United Kingdom v Council which decided that the Directive was a health and safety measure, the WTR were enacted under section 2(2) of the European Communities Act 1972. This Act, unlike section 47(2) of the Health and Safety at Work etc 1974 Act, does not provide that breaches of regulations made under it are actionable in civil proceedings. The closest domestic equivalent to a health and safety Article is a regulation made under the 1974 Act.
  
  
• The WTR were not implemented pursuant the 1974 Act. They do not, therefore, automatically give rise to civil liability.

• The failure to implement the WTD through the 1974 Act means that the Statutory Framework set up for the implementation of Health and Safety legislation in the UK has not been used. As a consequence, any protection provided by the 1974 Act, is not present for breaches of the WTR. They are not “health and safety regulations” within the meaning of that Act and therefore do not form part of the enforcement policies of the HSE or Local Authorities.
  
  
• Neither does the Employment Tribunal have jurisdiction concerning maximum weekly working time. Regulation 30 of the WTR provides that an employee may present a complaint to an Employment Tribunal that his employer has refused to permit him to exercise certain rights he has under the WTR, as set out in Regulation 30(1)(a) and (b). Regulation 30 does not entitle an employee to complain to an Employment Tribunal for breaches of  Regulation 4 (maximum weekly working time) or Regulation 8 (pattern of work). Therefore the Employment Tribunal provides no civil remedy for breaches of these two Regulations.
  
  
• Article 6(2) (maximum weekly working time) of the WTD is clear and precise and identifies the obligation which is imposed on employers for the benefit of workers. The ECJ found that this provision is of direct effect in Case 397 Pfeiffer and others b Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] ICR 1307. In that case the ECJ also held that a national court, hearing a case between individuals is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by the Directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in order to achieve an outcome consistent with the objective pursued by the Directive; and that, accordingly, in that case the national court had to do whatever lay within its jurisdiction to ensure that the maximum weekly period of working time set out by article 6(2) was not exceeded.
  
  
• In the circumstances, the argument that the Working Time Regulations 1998 should be interpreted as giving rise to civil liability is compelling. The judgement of Ramsey J is awaited with interest.

ANDREW BUCHAN