By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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Under the Working Time Regulations 1998 (WTR), which implement the EC Working Time Directive into UK law, in certain circumstances an employer can deny workers their right to daily and weekly rest breaks and rest periods where their activities involve the need for continuity of service or production. Work at docks or airports is given as a specific example of work for which exemptions (or derogations) from the normal rules might apply under Regulation 21 of the WTR.
Associated British Ports v Bridgeman is a test case on how this works in practice. It involves the hours that pilots can be expected to work on the River Humber. Demand for their services fluctuates, with a particularly busy period of four or five days every couple of weeks, coinciding with the spring tides. Associated British Ports (ABP) cope with this by requiring pilots to work more shifts with shorter rest breaks during busy periods and fewer shifts with longer breaks when there is less demand. Acts of pilotage typically last for anything from a couple of hours up to 11 or 12 hours.
Mr Bridgeman claimed that ABP was in breach of Regulation 10 of the WTR because it had failed to provide him with a daily rest period of not less than 11 consecutive hours in each 24-hour period and in breach of Regulation 12 of the WTR because it had failed to provide an uninterrupted break of not less than 20 minutes where his working time was more than six hours.
The Employment Tribunal (ET) found that the work of pilots is a case where there is a need for continuity of service once each distinct act of pilotage has commenced. As one job could require the pilot to remain at work for up to 11 or 12 hours, ABP was within its rights to deny pilots their entitlement to rest breaks under Regulation 12 of the WTR. However, the ET held that there was no exemption from the requirement that ABP provide a rest period under Regulation 10 as continuity of service was broken once the ship had docked or reached the open sea. Since that could be achieved within 11 or 12 hours of work, ABP was capable of complying with the provisions as regards daily rest.
ABP appealed against the ET’s decision with regard to Regulation 10 on the ground that once it had found that the exemption in Regulation 21 with regard to the need for continuity of service was engaged in relation to each distinct act of pilotage, there was no justification for the ET proceeding to examine whether or not the requirement had been established with regard to Regulations 10 and 12 separately.
The Employment Appeal Tribunal, having regard to the wording of the Directive and the need to adopt a restrictive approach to derogations from an EU-derived right, formed the provisional view that objective reasons for not providing workers with rest periods under individual Regulations of the WTR do have to be considered separately, but referred the matter to the European Court of Justice for a preliminary ruling.