Maio Marques da Rosa v Varzim Sol – Turismo, Jogo e Animaçao SA C/2017-844
In this case, the European Court of Justice was asked to interpret whether EU law requires that workers are entitled to a day off at the end of their working week, or simply at any moment during that period.
For health and safety reasons, the EU’s Working Time Directives (the 1993 Directive was replaced by a later one in 2004) require Member State countries to give workers certain minimum rights to rest breaks.
In addition to a daily rest break of 11 hours, each worker is entitled as a minimum to an uninterrupted rest break of at least 24 hours in every seven day reference period (or, in English – a whole day off each week).
Article 16 of the 2004 Working Time Directive says that Member States may choose to use a reference period of 14 days (with a 48 hour rest period) instead. Although the UK chose to do so, Portugal did not take up this option.
Mr Maio Marques da Rosa was employed from 1991 to 2014 by Varzim Sol, a Portuguese casino-owner. The casino is open 364 days per year and workers were required to work in turn at the same work stations following a predetermined pattern. Mr Maio Marques da Rosa sometimes worked seven consecutive days. Workers were entitled to two consecutive days off.
When Mr Maio Marques da Rosa was made redundant, he brought a claim that he had been denied his weekly rest periods. He lost, but appealed to the Porto Court of Appeal. That court referred several questions to the ECJ for a preliminary hearing, summarised as:
- Should EU law be interpreted to mean that the weekly rest period must be granted at the latest on the seventh day after six consecutive working days, or is it for the employer to choose?
- Must Article 16 of the Working Time Directive be interpreted as meaning the 48 hour rest period can be apportioned freely over the 14 day reference period?
The Advocate General gave a non-binding Opinion that the Working Time Directives should not be interpreted as requiring the weekly rest period to be granted on the seventh day following six consecutive working days.
The ECJ agreed.
Each Member State is required to ensure that every worker is entitled to at least 24 hours uninterrupted rest in each seven-day period, as well as a minimum of 11 hours’ daily rest. However, it does not say when in each period that minimum rest period must be granted. (EU legislation is published in many languages – some say “per seven-day period”, others say “during each seven-day period”. There is no suggestion that it must come at a certain point in that seven days.)
The Working Time Directive is intended to protect workers’ health and safety, and therefore workers must have adequate rest periods. It is up to Member States to decide how to fix the period when the minimum period of rest must be granted under Article 16. This flexibility may also benefit workers, who may be entitled to two consecutive rest periods if they are given one rest period at the end of a reference period, and another at the beginning of the next.
The ECJ noted that Portugal had not transposed Article 16 into its law and a 14-day reference period was not relevant to the case. It refused to answer the question about the application of this Article.
What to take away
At a time when the rights of workers in the gig economy who work flexibly and not to any particular pattern are in the news, the case is interesting and will provide comfort to employers who may be concerned about working time claims when they do not control hours worked, or who roster workers onto particular shift patterns.
This case was decided under the default seven-day reference period at Article 5 of the Working Time Directive. The UK’s Working Time Regulations, unlike their Portuguese equivalent, say that the employer may choose whether to use a reference period of either seven or 14 days for the weekly rest period. This is permissible under Article 16 of the Working Time Directive. (It is unfortunate that the ECJ did not answer the question about Article 16 as this would have provided greater clarification for UK employers.)
This means that in the UK, the correct reference periods can be consecutive 14 day periods – in theory it would seem therefore that a UK employer could grant a 48-hour rest period at the beginning of one 14 day period, and another at the end of a second 14 day period. Between those two rest periods, the worker could work for 20 days on the trot (provided that they are still receiving daily rest breaks and, if applicable, working no more than 48 hours each week.)
Before scheduling a rota that requires workers to work for nearly three weeks without a day off, however, employers should consider whether such a work pattern would be safe or healthy for their workers. Even if it is permissible under the Working Time Regulations, there may be a risk in all the circumstances of constructive dismissal claims, or breaches of the employer’s duty to employees under the Health and Safety at Work etc Act 1974.