Crunch time for Working Time

Landeshauptstadt Kiel v Norbert Jaeger, Case C-151/02

November 2003 is the 10th anniversary of the Working Time Directive (Council Directive 93/104/EC of 23 November 1993, as amended by Directive 2000/32 of 22 June 2000). One key element of the Directive is the limit placed on weekly working hours: "the average working time for each seven-day period, including overtime, does not exceed 48 hours" (Article 6 of the Directive). This was transposed into UK law in Regulation 4 of the Working Time Regulations 1998. The maximum hours requirement was of particular concern to the UK because working hours in the UK were then the longest of any EU Member State. In 1992, nearly half of the seven million male workers in the EU working 48 hours or more a week were employed in the UK.

The numbers working over 55 hours per week had risen to 1.5 million

The UK therefore took advantage of the opt-out allowed for in the Directive in Regulation 4 of the Working Time Regulations 1998 which prohibits a working week in excess of 48 hours: "unless his employer has first obtained the worker's agreement in writing to perform such work". The opt-out provision was designed to give the UK the opportunity over a 10-year period to bring its working time practices more into line with those prevailing in the other EU Member States. Instead, the opposite has occurred. A TUC study of February 2002, based on analysis of the government's Labour Force Survey and a TUC-commissioned survey, reported that nearly four million persons, 16% of the labour force, were now working over 48 hours per week compared to 3.3 million (then 15%) in the early 1990s. The numbers working over 55 hours per week had risen to 1.5 million. Consequently, the proportion of workers in the UK exceeding the 48-hour weekly limit remains today the highest in the EU.

However, the paragraph in Article 18(1)(b)(i) of the Directive authorising the opt-out also required that ten years after the adoption of the Directive, "the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this point (i) and decide on what action to take". That ten-year deadline is now imminent and the Commission is examining what action to take regarding the opt-out.

Apart from the increasingly difficult situation in practice, over the past ten years the legal position has become more complicated due to decisions of the European Court of Justice. The first, and most important of these, concerned the UK Conservative government's complaint that the Directive was concerned with terms of employment and, consequently, the Directive was unlawful as wrongly based on the Treaty provision allowing for directives concerned with health and safety in the working environment.

Rejecting the complaint, the Court interpreted the relevant Treaty provision (then Article 118a) as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in the working environment, including, in particular, aspects of the organisation of working time. The Court referred to the definition in the Constitution of the World Health Organisation (WHO), to which all the EU Member States belong, which defines health as a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity (United Kingdom of Great Britain and Northern Ireland v Council of the European Union, Case C-84/94, [1996] ECR I-5755).

In a later case, the Court addressed the definition of "working time" in Article 2(1) of the Directive. This provides a definition of "working time" for the purposes of the Directive comprising three conditions: 
 "working time shall mean any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice".

Article 2(2) continues: 
 "rest period shall mean any period which is not working time." 
 The question arose when doctors in Spain were required to be present "on-call" at health centres for periods exceeding those permitted by the Working Time Directive. The Court held that the decisive factor in determining "working time" was that the time spent on-call by doctors means that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need (Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, Case C-303/98, [2000] ECR I-7963).

The Court has now further elaborated this in another decision concerning doctors working on-call which may impact on the Commission's review in November 2003 of the opt-out provision in the Directive. On 9 September 2003, the Court decided that working time includes the time when the person concerned is permitted to rest at the place of work during the periods when his services are not required (Landeshauptstadt Kiel v Norbert Jaeger, Case C-151/02). The Court found it sufficient that "the first two conditions set out in the definition of the concept of working time were fulfilled" (paragraph 49).

There is no need for all the criteria to be met

Advocate General Saggio in the earlier case of Simap had asserted that "there is no need for all the criteria in the definition in Article 2(1) of the Directive to be met in order to classify a specified period as working time". Advocate General Ruiz-Jarabo Colomer in Jaeger agreed, referring to the purpose of the Directive as being "to lay down minimum safety and health requirements for the organisation of working time in all the Member States. Accordingly, the concepts included in Article 2 are defined very broadly in order to encompass all the situations which can arise in practice" (paragraph 28). To illustrate, he added: "To my mind, periods of time when an employee is in the workplace and at the employer's disposal constitute working time even if the employee is not carrying out his duties, since the employer has the power to assign tasks to the staff at any time. The same can be said of times when an employee is at work and carrying out his activity but is not at the employer's disposal because he has a wide autonomy to obtain a specific result, and of times when he is at the employers' disposal and is carrying out his duties, but is not at the workplace" (paragraph 30 of Opinion of 8 April 2003).

If the entire period of on-call duties of a doctor at a hospital is considered working time, then even when the doctor is able to sleep during these periods it becomes working time and cannot count as rest periods. This has significant consequences for the staffing levels required to secure continuous service provision while protecting the health and safety of workers subject to a maximum 48-hour working and entitled to mandatory rest periods every 24-hour period (Article 3 of the Working Time Directive 93/104/EC).

For example, at the hearing in Jaeger, the German government pointed out the consequences for the German health service: that staffing needs would increase by 24% and that between 15,000 and 27,000 additional doctors would be required. To this, Advocate General Ruiz-Jarabo Colomer replied pointing out that "the fifth recital in the preamble to Directive 93/104 states that the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations" (paragraph 44), a point repeated in the judgment of the Court (paragraph 67).

The potential implications of this judgment are not limited to doctors working on-call, but also have implications for others, for example, firefighters and teachers. Its impact has been felt already in proposals by a number of EU Member State governments to reconsider their position on the opt-out provision, a position which may influence the Commission's review, due to be produced in a consultative Communication in November 2003. For example, the Commission's review could be limited to dealing with the specific issue of on-call working, which still allows for the repeal of the general opt-out from the 48-hour maximum working week. It will be important to ensure that the Commission's review is subject to forceful representations by trade unions at both EU level and in the Member States.