Associated British Ports v Bridgeman (Working Time Regulations : no sub-topic) [2012] UKEAT 0425_11

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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Associated British Ports v Bridgeman (Working Time Regulations : no sub-topic) [2012] UKEAT 0425_11_0404 (04 April 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0425_11_0404.html Cite as: [2012] UKEAT 0425_11_0404, [2012] ICR D26, [2012] UKEAT 425_11_404

THE HONOURABLE MR JUSTICE SUPPERSTONE

Introduction

1. The central issue in this appeal is whether the Employment Tribunal erred in law in its construction of the derogation provided under Regulation 21 of the Working Time Regulations 1998 (“the Regulations”).

2. On 11 May 2011 an Employment Tribunal (“ET”) sitting in Hull, chaired by Employment Judge Forrest, found that Associated British Ports, the Appellant, acted in breach of Regulation 10 of the Regulations by refusing to allow Mr Bridgeman, the Respondent, a period of daily rest. The ET ordered the Appellant to pay the Respondent compensation in the sum of £200 in respect of the breaches of the Regulations on 30 March 2010.

3. The Respondent’s complaint that the Appellant refused to allow him a rest break, within Regulation 12 of the Regulations failed.

4. Before the ET, in relation to a period of daily rest under Regulation 10, the Appellant accepted that the Respondent had not received a rest period of at least 11 consecutive hours on 30 March; it relied on the exemption from that obligation set out in Regulation 21, because the Respondent’s activities involved the need for continuity of service in relation to work at docks, under Regulation 21(c)(ii). In those circumstances, the Appellant argued that it had complied with its obligation under Regulation 24 to afford the Respondent appropriate compensatory rest. Similarly in relation to the question of rest breaks under Regulation 12, the Appellant conceded that the Respondent had not been allowed a rest break while engaged in an act of pilotage of more than six hours, claimed the same exemption under Regulation 21, and argued that the Respondent had been afforded appropriate compensatory rest under Regulation 24.

5. The Appellant’s case was that once it had been shown that the Respondent’s work did involve the need for continuity of service, the effect of the derogation was that it was entitled, without more, to the exemption provided in relation to those provisions set out in Regulation 21.

6. The Respondent cross-appeals. The Respondent contends that the ET erred when it found the Appellant’s activities involved a need for continuity of service (“the continuity point”).

7. In the light of the recent judgment of the Court of Appeal in Hughes v Corps of Commissionaires (No. 2) (2011) IRLR 915 the Respondent no longer contends that the ET erred when it found the Appellant had brought itself within Regulation 24 as regards the provision of rest breaks under Regulation 12.

8. However the Appellant accepts that, in the event that it is successful on its appeal in relation to the proper construction of Regulation 21 in the context of the Respondent’s claim under Regulation 10, it will be necessary for the matter to be remitted to the ET for consideration of the question of compensatory rest under Regulation 24.

9. Mr Bruce Carr QC and Ms Sophie Belgrove appear for the Appellant. Mr John Bowers QC and Mr Nicholas Siddall appear for the Respondent.

The Relevant Law

10. The Working Time Directive (Directive 2003/88/EC) (“the Directive”)

The following recitals of the Directive identify its fundamental underlying purposes:

“Whereas…

(2) Articles 137 of the Treaty provides that the community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers’ health and safety. Directives adopted on the basis of that Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

(4) The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.

(5) All workers should have adequate rest periods. The concept of ‘rest’ must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.

(11) Specific working conditions may have detrimental effects on the safety and health of workers. The organisation of work according to a certain pattern must take account of the general principle of adapting work to the worker.

(15) In view of the question likely to be raised by the organisation of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the safety and health of workers.

(16) It is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member State or the two sides of industry. As a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods”.

11. These principles are reflected in the detailed rights conferred by the Articles of the Directive. Article 2 defines both working time and rest periods as follows:

“ ‘Working time’ means any period which the worker is working, at the employer’s disposal and carrying out his activities and duties, in accordance with national laws and/or practice.

‘Rest period’ means any period which is not working time.”

12. Chapter 2 is headed “Minimum rest periods – other aspects of the organisation of working time”. For present purposes the following Articles are relevant:

“ARTICLE 3

DAILY REST

Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.

ARTICLE 4

BREAKS

Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.”

13. Article 5 is concerned with weekly rest periods, entitling a worker to a minimum of uninterrupted 24 hours in a seven-day period. Article 6 provides for a maximum weekly working time of 48 hours; and Article 7 provides that workers should have at least four weeks’ paid annual leave.

14. Article 17 identifies a number of areas where derogation from the rights conferred by the Directive is permitted. It reads:

“1. With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves …

2. Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection.

3. In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16:

(ii) dock or airport workers…

4. In accordance with paragraph 2 of this Article derogations may be made from Articles 3 and 5:

(a) in the case of shift work activities, each time the worker changes shift and cannot take daily and/or weekly rest periods between the end of one shift and the start of the next one;

(b) in the case of activities involving periods of work split up over the day, particularly those of cleaning staff.”

The Working Time Regulations 1998 (“the Regulations”)

15. The Regulations were enacted in order to implement the Directive in the UK. The material provisions are as follows: Regulation 2 defines

“ ‘Rest period’ in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;

‘Working time’, in relation to a worker, means—

(a) any period during which he is working, at his employer’s disposal and carrying out his activity or duties…

And ‘work’ shall be construed accordingly.”

16. Regulation 10 (“Daily Rest”) provides, as far as relevant:

“(1) [A worker] is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer.”

17. Regulation 12 (“Rest Breaks”) provides, as far as relevant:

“(1) Where [a worker’s] daily working time is more than six hours, he is entitled to a rest break.

(2) The details of the rest break to which [a worker] is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement.

(3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his work station if he has one.”

18. Regulation 21 (“Other special cases”) provides, as far as relevant:

“Subject to Regulation 24, Regulations 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply in relation to a worker—

…

(c) where the worker’s activities involve the need for continuity of service or production, as may be the case in relation to

…

(ii) work at docks or airports”

19. Regulation 22 (“shift workers”) provides, as far as relevant:

“(1) Subject to Regulation 24—

(a) Regulation 10(1) does not apply in relation to a shift worker when he changes shift and cannot take a daily rest period between the end of one shift and the start of the next one;

(b) paragraphs (1) and (2) of Regulation 11 do not apply in relation to a shift worker when he changes shift and cannot take a weekly rest period between the end of one shift and the start of the next one; and

(c) neither Regulation 10(1) nor paragraphs (1) and (2) of Regulation 11 apply to workers engaged in activities involving periods of work split up over the day, as may be the case for cleaning staff.”

20. Regulation 24 (“compensatory rest”) provides, as far as relevant:

“Where the application of any provision of these Regulations is excluded by Regulation 21 or 22, or is modified or excluded by means of a collective agreement or a workforce agreement under Regulation 23(a), and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break—

(a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and

(b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety.”

21. Regulation 24A (“mobile workers”) provides:

“(1) Regulation 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply to a mobile worker in relation to whom the application of these Regulations is not excluded by any provision of Regulation 18.

(2) A mobile worker, to whom paragraph (1) applies, is entitled to adequate rest, except where the worker’s activities are protected by any of the matters referred to in Regulation 21(e).

(3) For the purposes of this Regulation, ‘adequate rest’ means that a worker has regular rest periods, the duration of which are expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, he does not cause injury to himself, to fellow workers or to others and that he does not damage his health, either in the short term or in the longer term.”

(“Mobile worker” is defined in Regulation 2 as meaning “any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road or air”).

Findings of fact made by the ET

22. The material findings of fact made by the ET are set out in the following paragraphs in its Reasons:

23. Paragraph 2:

“The background to this claim, which both parties informed me was regarded as a test case, involves the hours that pilots can be expected to work on the River Humber. The Respondent is the Statutory Harbour Authority for the Humber Estuary, which is itself regarded as a single harbour for this purpose. It includes the ports of Hull, Grimsby, Immingham, Goole and others. Under the statutory framework, including the Pilotage Act 1987 and the various Merchant Shipping Acts, the Respondent is approved by the Department of Transport to provide a monopoly, compulsory pilotage service for vessels over 60 metres in length. The demand for pilotage fluctuates; in the long term, in response to world trade cycles; … In the short term, it fluctuates daily. There are currently some 30,000 shipping movements a year in the Humber; daily movements might typically be between 50 and 80. Every couple of weeks, there is a particularly busy period of four or five days coinciding with the spring tides. … Ships are expensive assets to leave waiting for a berth, or at a berth. The Respondents have the difficult job of maintaining a sufficient force of pilots, trained and qualified, to meet the fluctuating demands of ship owners without having a surplus of pilots standing idle at any time. That would incur extra costs, pushing up pilotage charges, and making the Humber ports unattractive to ship owners. One way for the Respondents to manage those conflicting economic demands is to require their workforce to work harder, with more shifts and shorter rest breaks between them when demand for pilots is high, with corresponding fewer shifts with longer breaks when demand is low.”

24. Paragraph 13:

“On the facts, I find there was an obligation on the employee to attend work, in uniform, one hour after the call either with the Passage Plan prepared, or, alternatively in sufficient time before the expiry of the hour to prepare the Passage Plan at work. … Preparing the Passage Plan would take up to 20 minutes. I find therefore that, for 20 minutes of that hour, the pilot was working, at his employer’s disposal and carrying out his activities or duties in preparing the Passage Plan. …”

25. Paragraph 15:

“…If ‘work at docks or airports’ is specifically given as an example of work which may involve the need for continuity of service, I see no difficulty in finding that the work of pilots falls squarely within that sub-section. The work of a pilot involves navigating a vessel into, or out of, a dock. It is a natural extension of ‘work at docks’, whether the act of pilotage takes place within the dock, or extends to its approaches as well.”

26. Paragraph 16:

“… On the face of it, my view is that the activities of a pilot navigating a vessel into harbour are a classic case where there is a need for continuity of service. The timing of such activities can never be precisely calculated. It is dependent on such imponderables as the strength of the tide, the weather, the wind, congestion in the passage, the speed of the vessel, the manoeuvrability of the vessel (and of any other vessel it encounters), the draught of the vessel, which may determine the channels it is able to follow, and so on. The consequences if a pilot left his ship on expiry of his working hours, whether set by statute or contract, would be disastrous. In many situations, it might be impractical in any event; there is often simply no way for the pilot to leave a vessel in mid-stream…”

27. Paragraph 18:

“On the evidence, it is clear that acts of pilotage, including travel time to and from King George Dock, typically last for anything between a couple of hours and up to 11 or 12 hours. I had no evidence to suggest that they could normally be anticipated to last longer than that. …”

28. The ET at paragraphs 21 and 22 of the Reasons applied the findings of fact to Regulation 21.

29. At paragraph 21 the ET said:

“I find that Regulation 21 is engaged in relation to each distinct act of pilotage, since that involves work at docks (or in the extended harbour) and there is a clear need for continuity of service once the pilot has commenced.”

30. However the ET found that the Appellant was not entitled to the benefit of the derogation in relation to Regulation 10 for the following reason:

“Continuity of service does not require the pilot to transfer from one ship to another without a break; continuity is broken once the ship has docked or reached the open sea. Since that can be achieved within 11 or 12 hours work, continuity of service does not require continuous working beyond that point. Section 21(c) does not therefore apply to exclude Regulation 10, the entitlement to rest periods. The pilot is therefore entitled to a rest period of not less than 11 consecutive hours in each 24-hour period during which he works for his employer.” (Reasons, paragraph 21).

31. The Appellant was though entitled to the benefit of the derogation in relation to Regulation 12:

“… Continuity of service may require a pilot to remain continuously at work for up to 11 or 12 hours to complete an act of pilotage, and therefore section 21(c) does apply to exclude Regulation 12 and the entitlement to rest breaks.” (Reasons, paragraph 22).

Submissions of the parties

32. Mr Carr submits that the ET erred in treating the provisions of Regulation 21 as meaning that not only did the Appellant need to establish that the Respondent’s work involved the need for continuity of service at a dock but it had to go on to show that that continuity of service was such that it could not comply with each provision excluded by that Regulation before it could rely on the derogation relating to it.

33. Mr Bowers accepts that read literally the provisions of the Regulations do not obviously allow of the possibility that continuity of service is made out as regards the right under Regulation 12 but not as regards Regulation 10. However Mr Bowers submits (1) a purposive approach should be adopted to the Regulations; alternatively (2) by reference to European jurisprudence words should be read into the Regulations to give proper effect to the narrow scope of the derogations from the Directive.

34. Mr Bowers submits that should I not be persuaded by these submissions then a reference to the Court of Justice of the European Communities (“ECJ”) would be appropriate to allow it to provide a definitive interpretation as to the application of the derogation in Article 17(3) of the Directive in factual situations such as those found by the ET. Mr Carr agrees if I do not accept his submissions as being clearly correct.

35. On the cross-appeal the one live issue between the parties is the continuity point. The Notice of Cross-Appeal stated:

“The Employment Tribunal erred in that it:

5.1.1 Misconstrued and/or misapplied the guidance of the Court of Appeal in Gallagher [and others v Alpha Catering Services Ltd (trading as Alpha Flight Services) [2005] ICR 673] as to the requirements for continuity of service;

5.1.2 Reached a perverse conclusion that the [Appellant’s] activities were a classic case of the requirement for continuity of service;

5.1.3 Wrongfully rejected the concept of double or additional staffing as going to the requirement of continuity of service.”

Discussion

(A) The appeal: Regulation 10

36. Mr Carr submits that Regulation 21(c)(ii) could not be clearer. Subject to Regulation 24 Regulations 10(1) and 12(1) (together with the other Regulations referred to in the opening words of Regulation 21) do not apply in relation to a worker where the worker’s activities involve the need for continuity of service in relation to work at docks. Having found that the derogation set out at Regulation 21 was engaged in relation to each distinct act of pilotage since that involved work at docks (or in the extended harbour) and there is a clear need for continuity of service once the pilot has commenced (Reasons, paragraph 21), there is no justification for the ET then to proceed to address separately the question of whether the derogation applied first, to Regulation 10(1) and then to Regulation 12(1).

37. The analysis of the ET was that in order for it to rely on the derogation in relation to Regulation 12, it was necessary for the Appellant to establish not only that the Respondent was engaged in activities involving the need for continuity of service but also that such activities might require him to work for 11 or 12 hours continuously such that the Appellant was unable to comply with the provisions of Regulation 12. In respect of this the ET found that the Appellant could not comply with the provisions as to rest breaks and was therefore entitled to the benefit of the derogation (Reasons, paragraph 22). Similarly, in order for it to rely on the derogation in relation to Regulation 10 (daily rest) it was necessary for the Appellant to establish not only that the Respondent was engaged in activities involving the need for continuity of service but also that those activities were such as to require him to work with a rest period of less then 11 consecutive hours meaning that the Appellant could not comply with the provisions of Regulation 10. In respect of this the ET found that the Appellant could comply with the provisions as to daily rest and was not therefore entitled to the benefit of the derogation (Reasons, paragraph 21).

38. There is, Mr Carr submits, no justification for the introduction of an additional step before the Appellant was entitled to the benefit of the derogation.

39. The position in respect of Regulation 21 can be contrasted, Mr Carr submits, with that in respect of Regulation 22. Regulation 22 limits the scope of the derogation to cases where under Regulation 22(1)(a), a shift worker cannot take daily rest between one shift and the next (in which case Regulation 10(1) is disapplied) and under Regulation 22(1)(b), where a shift worker cannot take weekly rest between one shift and the next (in which case Regulations 11(1) and (2) are disapplied).

40. Mr Bowers concedes that if the Appellant is correct that the provisions of the Regulations are to be read literally then Mr Carr’s submission is well made. However Mr Bowers submits that if a purposive approach is adopted to the construction of the Regulation, alternatively effect is given to the Directive, then a different conclusion is reached, consistent with the decision of the ET.

41. Mr Bowers’ purposive construction argument starts by focusing on the ET findings as to workers’ working time activities. In this connection he refers to the finding at the outset of paragraph 13 that “there was an obligation on the employee to attend work, in uniform, one hour after the call either with the Passage Plan prepared, or, alternatively in sufficient time before the expiry of the hour to prepare the Passage Plan at work” and the further finding that “for twenty minutes of that hour, the pilot was working, at his employer’s disposal and carrying out his activities or duties preparing the Passage Plan”. At Paragraph 18 there is the finding that on the evidence “it is clear that acts of pilotage, including travel time to and from King George Dock, typically last for anything between a couple of hours and up to 11 or 12 hours”. That finding leads Mr Bowers into his analysis of paragraph 21 where the judge finds that “Regulation 21 is engaged in relation to each distinct act of pilotage, since that involves work at docks (or in the extended harbour) and there is a clear need for continuity of service once the pilot has commenced”. Mr Bowers submits that the judge was correct to look at each of the worker’s activities, each act of pilotage, and consider what they involve; so, he says, there is a need for continuity of service once each act of pilotage commences. Mr Bowers says the reasoning in paragraph 21 is somewhat compressed, but the judge properly applied the decision in Gallagher to the facts as found and reached the conclusion that the pilot is entitled to a rest period of not less than 11 consecutive hours in each 24 hour period during which he works for his employer.

42. Mr Carr responds to Mr Bowers’ submission breaking down paragraph 21 into five stages, as he did, that there is an obvious tension between what the judge said at stage 1 (“I find that Regulation 21 is engaged in relation to each distinct act of pilotage…”) and what is said at paragraph 17:

“I considered whether it would be possible to construe ‘the need for continuity of service’ as limited to those situations where continuity of service on a particular occasion would require the worker to work through a rest period, or go without a rest day. However, that link is not made expressly in the statute, and it would have the unfortunate effect that there might be situations, varying on a daily basis, where the derogation in Regulation 21 would apply if continuity required the pilot to work over six hours (and so work through a rest break), but did not require the pilot to work over 13 hours, and so work into a rest period.”

Mr Carr submits that that problem, properly identified by the ET, supports the submission of the Appellant. Mr Bowers contends that the provisions relating to shift workers (Regulation 22) and mobile workers (Regulation 24A) are dealing with recognisable problems. However I agree with Mr Carr that Regulation 21 is also dealing with recognisable problems in the context of the various workers’ activities covered by the Regulation.

43. Turning to his alternative submissions, Mr Bowers points to the wording of the Directive, in particular to paragraph 5 of the preamble concerning adequate rest periods, Article 3 (Daily Rest) and Article 17 (Derogations) and to the decision of the European Court of Justice in Commission of the European Communities v United Kingdom [2006] IRLR 888 in support of two propositions. First, that strict compliance is required of member states when utilising derogations from the rights provided for under the Directive; and second, that the essential health and safety basis of the Directive is a consideration of significant weight and provides social law rights of particular importance.

44. Further, Mr Bowers emphasises the need to adopt a restrictive approach to derogations from an EU derived right.

45. In Landeshauptstadt Kiel v Jaeger [2004] ICR 1528 the ECJ said at paragraph 89 that the derogations provided for in Article 17 of Directive 93/104 must be interpreted in such a way that “their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected”.

46. The court stated at paragraph 92 of the judgment that:

“The purpose of Directive 93/104 is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods which not only must be effective in enabling the persons concerned to recover from the fatigue engendered by their work, but also must be preventative in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce.”

The court continued:

“94. It follows from the foregoing that ‘equivalent periods of compensatory rest/equivalent compensating rest periods’ within the meaning of article 17(2) and (3) of Directive 93/104 must, in order to comply with both those qualifications and the objective of the Directive … be characterised by the fact that during such periods the worker is not subject to any obligations vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health. Such rest periods must therefore follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work. …

97. Under those circumstances, the increase in daily working time which the member states or social partners may effect under article 17 of Directive 93/104 by reducing the rest period accorded to the worker during the course of a given working day, in particular in hospitals and similar establishments, must in principle be off-set by the grant of equivalent periods of compensatory rest made up to a number of consecutive hours corresponding to the reduction applied and from which the worker must benefit before commencing the following period of work. As a general rule, to accord such periods of rest only at other times not directly linked with the period of work extended owing to the completion of overtime does not adequately take into account the need to observe the general principles of protection of the safety and health of workers which constitute the foundation of the Community regime for organisation of working time.”

47. In Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut EV [2005] ICR 1307 the ECJ said:

“52. It is clear both from the purpose of Directive 89/391 (encouraging the improvement of the health and safety of workers at work) and from the wording of article 2(1) thereof that the Directive must be taken to be broad in scope. It follows that the exclusions from its scope provided for in the first sub-paragraph of article 2(2) must be interpreted restrictively.

54. This exclusion from the broadly-defined field of application of Directive 89/391 must therefore be interpreted in such a way that its scope is restricted to what is strictly necessary in order to safeguard the interests which it allows the member States to protect.”

48. In Gallagher the Court of Appeal made clear that the focus in regulation 21 of the Regulations is on the activities of the worker, rather than the employer. In that case the evidence did not establish that the activities of the applicants, as distinct from those of their employer, involved “the need for continuity of service” within the meaning of regulation 21(c); and therefore, regulation 21(c) did not exclude the applicants’ right to rest breaks under regulation 12(1).

49. Peter Gibson LJ stated at paragraph 37:

“In neither the Directive nor the Regulations is there any reference to the employer. No doubt the activities of the worker are the activities of the employer in law, but the focus is on the activities of the worker rather than the employer, which activities involve the requisite need for continuity of service or production. The employment tribunal, in my judgment, erred in looking to the activities of the employer.”

50. Union Syndicale Solidaires Isere v Premier Ministre [2011] IRLR 84 was a case where the applicant was a confederation of trade unions. It represented casual and seasonal staff working at children’s leisure and holiday centres in France. The ECJ said at paragraph 58 of its judgment that:

“As is clear from recital (15) of that [the] Directive, while a degree of flexibility is allowed to member states in the application of certain provisions of that directive, they must nevertheless ensure compliance with the principles of protecting the health and safety of workers.”

The ECJ continued at paragraph 59:

“While Article 17(2) of Directive 2003/88 must therefore be interpreted as allowing member states and, where appropriate, the two sides of industry, some latitude when establishing, in exceptional cases, an appropriate protection for the workers concerned, the position remains that the objective of that protection, which concerns the health and safety of those workers, is exactly the same as that of the minimum daily rest period provided for in Article 3 of that Directive or the equivalent period of compensatory rest provided for in Article 17(2), namely to enable those workers to relax and dispel the fatigue caused by the performance of their duties.”

51. In a domestic context the health and safety objective of the Directive was also considered recently in Hughes (No.2), where at para 6 Elias J said:

“The following recitals of the Directive identify its fundamental underlying purposes. They demonstrate that whilst the purpose is the protection of the health and safety of workers, some flexibility in applying the standards may be justified to take into account unusual or particular working arrangements where strict compliance would cause operational difficulties.”

52. Mr Bowers submits that it furthers the aims of the Directive that Regulation 21 is interpreted to require that the need for continuity of service is made out separately as regards each right from which derogation is made before an employer can gain the benefit thereof.

53. In Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland [2007] ICR 592, the ECJ stated at paragraph 36 in relation to the provisions of Directive 93/104 that

“According to those provisions, this harmonisation at Community level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – and adequate breaks and by providing for a ceiling of 48 hours on the average duration of the working week, a maximum limit which is expressly stated to include overtime…”

54. At paragraph 39 the ECJ added: “workers must actually benefit from the daily and weekly periods of rest provided for by the Directive”.

55. It is appropriate, Mr Bowers submits, to read words into the Regulations to achieve the policy aim of the Directive. In support of this submission Mr Bowers relies upon the passages in the judgment of the Court of Appeal in Vodafone 2 v HMRC [2010] 2 WLR 288 at paragraphs 37 and 38 and the passage in Attridge Law v Coleman [2010] IRLR 10 where Underhill J (P) read words into the Disability Discrimination Act.

56. Mr Bowers submits that the obligation on the English courts to construe domestic legislation consistently with Community law obligations is both broad and far-reaching. In Vodafone 2 v HMRC [2010] 2 WLR 288 Sir Andrew Morritt C summarised the obligation at paragraph 37 as follows:

“In particular:

(a) it is not constrained by conventional rules of construction [per Lord Oliver in Pickstone at 126B];

(b) it does not require ambiguity in the legislative language [per Lord Oliver in Pickstone at 126B; and Lord Nicholls in Ghaidan at para 32];

(c) it is not an exercise in semantics or linguistics [per Lord Nicholls in at Ghaidan at paras 31 and 35; Lord Steyn at paras 48-49; Lord Rodger at paras 110-115];

(d) it permits departure from the strict and literal application of the words which the legislature has elected to use [per Lord Oliver in Litster at 577A; Lord Nicholls in Ghaidan at para 31];

(e) it permits the implication of words necessary to comply with Community law obligations [per Lord Templeman in Pickstone at 120H-121A; Lord Oliver in Litster at 577A]; and

(f) the precise form of the words to be implied does not matter [per Lord Keith in Pickstone at 112D; Lord Rodger in Ghaidan at para 122; Arden LJ in IDT Card Services at para 114].”

57. Underhill J (P) made use of this approach in order to read words into the Disability Discrimination Act 2005 in EBR Attridge LLP (formerly Attridge Law) v Coleman [2010] ICR 242. He said at paragraph 14:

“Applying that approach, I agree with the employment judge, and with Judge Peter Clark [2007] ICR 654 when the matter was first before this tribunal, that there is nothing ‘impossible’ about adding words to the provisions of the 1995 Act so as to cover associative discrimination. No doubt such an addition would change the meaning of the 1995 Act, but, as the speeches in Ghaidan v Godin-Mendoza [2004] 2 AC 557 make clear, that is not in itself impermissible (see, e.g., per Lord Nicholls at paras 32-33). The real question is whether it would do so in a manner which is not ‘compatible with the underlying thrust of the legislation’ (per Lord Nicholls at para 33) or which is ‘inconsistent with the scheme of the legislation or with its general principles’ (per Lord Rodger at para 121). … That was plainly not the intention of Parliament when the Act was enacted, nor does it correspond to the actual meaning of the words, however liberally construed; but the implication was necessary in order to give effect to Convention rights and it went ‘with the grain of the legislation’ (in Lord Rodger’s phrase). In my view the situation with which I am concerned is closely analogous. The proscription of associative discrimination is an extension of the scope of the legislation as enacted, but it is in no sense repugnant to it. On the contrary, it is an extension fully in conformity with the aims of the legislation as drafted…”

58. Mr Carr responded to Mr Bowers’ submissions as to the health and safety objectives of the Regulations in the Directive by reference to Regulation 24. Regulation 21 operates subject to Regulation 24. The health and safety objective is met by Regulation 24, but not in precisely the same way the Regulations otherwise require. By Regulation 24(a) an employer shall “wherever possible” allow the employee to take “an equivalent period of compensatory rest”, but in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest sub-paragraph (b) requires the employer to afford him such protection “as may be appropriate in order to safeguard the worker’s health and safety”. Regulation 21 does not therefore undermine the health and safety objectives of the Regulations and the Directive.

59. However Mr Carr accepts that the decision of the Court of Appeal in Hughes (No.2) which post-dates the decision of the ET in the present case, creates what he describes as a “wrinkle” to his analysis. The case concerned rest breaks for a security guard working 12-hour shifts; as such it was a Regulation 12 claim. The claimant’s appeal was dismissed because the Court of Appeal was in substantial agreement with the decision of the EAT that there had been no infringement of his working time rights because he had been given compensatory rest under Regulation 24(a). Although the case was decided on the basis of Regulation 24(a) Elias LJ, delivering the judgment of the court, considered the position more widely. Most importantly the Court of Appeal decided that the claimant fell within the exception to Regulation 12 provided by Regulation 21(b), as full Gallagher rest breaks under Regulation 12 could not have been afforded to him. To demonstrate that Regulation 21 applies, employers need to show that there are objective reasons why full Gallagher breaks cannot be provided.

60. Gallagher concerned Regulation 21(c) rather than 21(b), but as Elias LJ said at paragraph 18 “in our view it raises precisely the same issues of construction”.

61. At paragraph 23 Elias LJ said:

“The construction of reg.21 in turn influences the correct interpretation of reg. 24. If when determining whether reg.21 applied, the relevant activities to consider where those of the employer and not the worker, the right to a reg.12 work break would be excluded in a significant number of cases where the employer would in fact readily organise the work so as to secure to the staff full reg.12 breaks. They would not be reg.12 breaks because that Regulation would have been disapplied; they would necessarily constitute ‘equivalent periods of compensatory rest’ under reg.24(a) even though in every sense identical to reg.12 breaks. It would then be necessary for the tribunal to ask in the context of applying reg.24, whether there were objective reasons why the working arrangements could not be arranged so as to secure a full break. However, since the focus is on the worker’s activities, that question has to be considered at the prior stage of determining whether reg.21 is engaged at all. …” (Emphasis added).

62. At paragraph 42 Elias LJ identified the second ground of appeal from the decision of the EAT, namely “it is alleged that the employment tribunal was wrong to find that there were objective factors justifying the failure to provide the appellant with his full Gallagher rest break”.

63. At paragraph 56 Elias LJ said:

“We turn to the second ground which, as we have said, really embraces submissions why the employment tribunal ought to have found that reg.21(b) was not engaged at all. Mr Gray-Jones advances this aspect of his case on a number of fronts. Because it was argued in the context of reg.24 he focused on the issue whether there were objective reasons why a full Gallagher break could not have been provided, but we would accept that in principle this is what the employer would have to show in order to demonstrate that reg.21 applied.”

64. Mr Carr emphasises, by reference to the judgment in Hughes in the EAT [2011] IRLR 100, that the decision of the employment tribunal that the employer was not in breach of reg.24 was affirmed on different grounds. The employer provided compensatory rest within the meaning of reg.24(a). Hughes was a reg.21 case. Further the claim in Hughes was not based on multiple regulations, as in the present case, but only on a single regulation, regulation 12.

65. However in my view it must be strongly arguable that the analysis of Elias LJ in Hughes (No.2) that objective reasons are required to justify a failure to provide the Appellant with his full Gallagher rest break applies equally to rest periods under Regulation 10, so that objective reasons for not giving rest periods under Regulation 10 and rest breaks under Regulation 12 have to be separately considered. That would be in accordance with what appears to me to be the correct interpretation of article 17 of the Directive, namely that in order for a member state properly to claim the benefit of the derogation pursuant to article 17(3)(c) of the Directive the requirement for continuity of service must be made out separately as regards each right under the Directive from which derogation is made. I have formed this provisional view having regard in particular to the wording of the Directive and the need to adopt a restrictive approach to derogations from an EU derived right. (See paras 43-47 above).

66. In R v International Stock Exchange of the United Kingdom and the Republic of Ireland Limited [1993] 2 CMLR 677 Sir Thomas Bingham MR at paragraph 10 stated:

“…if the facts have been found and the Community law issue is critical to the court’s final decision, the appropriate course is ordinarily to refer the decision to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer. I am not here attempting to summarise comprehensively the effect of such leading cases as H.P. Bulmer v J. Bollinger S.A.; srl CILFIT and Lanificio di Gavardo SPA v Ministry of Health and Regina v the Pharmaceutical Society of Great Britain ex parte The Association of Pharmaceutical Importers, but I hope I am fairly expressing their essential point.”

67. In my view in order to determine the proper construction and application of reg.21 to the facts of the present case it is necessary to construe the phrase “activities involving the need for continuity of service or production” in article 17(3)(c) of the Directive. In particular there is a need to know whether the requirement of continuity of service has to be established separately as regards each right under the Directive from which derogation has been made or whether continuity of service should be addressed generally without consideration of the specific rights from which derogation has been made. In the present case the facts have been found and in my judgment this Community law issue is critical to my final decision. I am not satisfied that the issue can be satisfactorily resolved in the absence of a reference to the ECJ. In these circumstances I have decided to refer the question of the proper construction of article 17(3)(c) of the Directive to the ECJ for a preliminary ruling.

(B) The cross-appeal: continuity of service

68. Mr Bowers submits that having regard to the arguments before the ET (see para 16: “the more contentious question is whether a pilot’s ‘activities involve the need for continuity of service’?), the judge erred in his approach at paragraph 3 of the Reasons in stating: “I am not concerned with the proper reconciliation of the economic pressures on the pilotage service; or the various disputes between the pilots collectively and their employers”. In adopting this approach, Mr Bowers contends, the ET failed to engage with the issue as to the extent to which double-staffing could ensure there was no need for continuity of service.

69. Mr Bowers submits that the ET appears to have formed the view that double-staffing can never be appropriate as it would always defeat the application of the regulation 21 derogation. In expressing such a blanket prohibition the ET erred in law and misapplied the guidance in Gallagher where Peter Gibson LJ said:

“33. … The statistics… do not support the view that the activities of the employees, as distinct from their employer, involve the need for continuity of service or production. It is not explained why the employees, operating as they do in small units, cannot have their working time so organised as to have rest breaks within each six-hour period of working time. No doubt the working time of Alpha’s employees would need to be carefully organised so that there would be an adequate number of workers available while others are taking a twenty-minute rest break. But it has not been explained why the employee’s activities involve the need for continuity of service or production. …

37. … In neither the Directive nor the Regulations is there any reference to the employer. No doubt the activities of the worker are the activities of the employer in law, but the focus is on the activities of the worker rather than the employer, which activities involve the requisite need for continuity of service or production. The employment tribunal, in my judgment, erred in looking at the activities of the employer.

38. Mr Oldham asserts that the economic consequences of the employees’ interpretation would be devastating. That assertion is not backed by a finding of the employment tribunal, and I am not persuaded that so apocalyptic a consequence would flow if the employees are right. No doubt health and safety requirements do add to the economic burdens of an employer, but that fact cannot justify an interpretation which the Directive and the Regulations would otherwise not allow.

40. However, for the reasons which I have already given, the conclusion reached by the appeal tribunal was in my judgment correct. As Mr Hogarth observed in his skeleton argument, any other interpretation would allow an employer to avoid the duty imposed by the Regulations by the simple expedient of not employing enough staff to cover for rest breaks.”

70. The guidance in Gallagher was endorsed in Hughes (No.2). Gallagher concerned reg.21(c) rather than 21(b), but in the court’s view it raised precisely the same issue of construction (para 18). Elias LJ said:

“31. If working arrangements can be made so as to enable the worker to carry out his duties without his permanent presence being required throughout his shift, reg.21(b) is not engaged. That issue ought not to be considered in the context of reg.24.

32. As to the first issue, the argument before the tribunal was largely directed to the question whether there were objective reasons which made it not possible for a Gallagher break to be given during the shift. The implicit assumption was that since reg.12 had been disapplied, this would amount to an equivalent period of compensatory rest. The tribunal considered various possible ways in which such a rest period … might in theory have been provided. These included employing a mobile guard who could provide cover across various single-manned sites when a break was necessary; twinning or pairing guards so that one would always be available when another took a break; and by the client, Orange, providing the necessary cover from its own employees.

33. The tribunal rejected each of these, not merely on the grounds that they were unduly costly, but also because they would impose administrative and logistical difficulties for the employers. Any of these arrangements could potentially jeopardise the employer’s ability to undertake the contract which could in turn threaten the appellant’s job. …”

71. When considering the question as to whether full Gallagher breaks had been afforded to the Appellant, in relation to the second ground of appeal, the first aspect of this ground was that it was said that notwithstanding that the tribunal stated in terms that it was not influenced solely by economic factors nonetheless that was in substance the reason why it was considered that it was impossible for the employers to provide appropriate cover (para 57). The Court of Appeal rejected this ground. At paragraph 60 Elias LJ said:

“…As to the first, this was not a case where the only reason for failing to provide the requisite cover was to maximise profits. Any significant additional cost could have undermined the ability of the employers to secure the contract at all and would have threatened the jobs of the security officers or their pay. As the tribunal pointed out, it will always be possible to provide the requisite rest breaks if money is no object. However, the recitals emphasise that imposing administrative, financial and legal constraints may hold back the creation and development of small and medium-sized undertakings. In our judgment the tribunal was fully alive to that consideration, and properly allowed it to enter the equation whether the reasons were objectively justified or not. The appellant’s argument ignores it. In addition, the tribunal found in terms that there were logistical and administrative problems which would arise if additional staff had to be employed. That is a finding of fact, sustainable on the evidence, and there is no basis for going behind it.”

72. Mr Bowers submits that the reasoning to be found in the judgment of the Court of Appeal in Hughes (No.2) at paragraphs 33 and 60, in particular, is absent in the present case. It follows in his submission that the ET misapplied the guidance in Gallagher and Hughes (No.2). Further in rejecting the concept of double-staffing as a possibility it failed to carry out the balancing assessment suggested by the court in Hughes; alternatively he submits on the facts found by the ET the conclusion that continuity of service was made out was perverse. Finally Mr Bowers contends that any such conclusion was not sufficiently and adequately reasoned so as to amount to an error of law.

73. Mr Carr submits, in my view correctly, that this cross appeal is in essence a perversity challenge. At paragraph 16 of its Reasons the ET expressly accepted the guidance from the Court of Appeal in Gallagher that “the focus is on the activities of the worker rather than the employer”. The ET continued:

“On the face of it, my view is that the activities of a pilot navigating a vessel into harbour are a classic case where there is a need for continuity of service. The timing of such activities can never be precisely calculated. It is dependent on such imponderables as the strength of the tide, the weather, the wind, congestion in the passage, the speed of the vessel, the manoeuvrability of the vessel (and of any other vessel it encounters), the draught of the vessel, which may determine the channels it is able to follow, and so on. The consequences if a pilot left a ship on expiry of his working hours, whether set by statute or contract would be disastrous. In many situations, it might be impractical in any event; there is often simply no way for the pilot to leave a vessel in mid-stream.”

74. At paragraph 20 the ET observed:

“It seems to me that in Paragraphs 33 and 40 the Court of Appeal accept the argument that the employer’s need for continuity of services is essentially related to the number of workers employed. Aircraft cleaners should not be required to work through a rest break simply because the plane needs to be ready for take-off, when careful organisation or employing more cleaners could remove the problems.”

75. Mr Bowers is not in a position to undermine these clear findings of fact. The ET considered Mr Sidall’s argument that “a simple solution to this problem would be to double-up pilots, as indeed is required in the case of Very Large Ships”. The ET was entitled on the facts found and in the circumstances of the case to reject this submission. The conclusion reached by the ET was not, in my view, perverse.

76. Further in my view the findings set out in paragraph 16 (coupled with the conclusion in paragraph 22 as to why continuity is satisfied in respect of regulation 12) produces a decision that is sufficiently adequately reasoned.

Conclusion

77. For the reasons I have given

i) I shall refer the issue of the proper construction of article 17(3)(c) of the Directive to the ECJ for a preliminary ruling. The question for determination is whether in order for a member state properly to claim the benefit of the derogation pursuant to article 17(3)(c) of the Directive the requirement of continuity of service has to be established separately as regards each right under the Directive from which derogation is made or whether continuity of service should be addressed generally without consideration of the specific rights from which derogation has been made.

ii) I direct the parties to produce a draft of the reference to the ECJ (see CPR68.2 and PD68).

iii) The cross appeal is dismissed.

United Kingdom Employment Appeal Tribunal