Opinion

Working Time Regulations - Weekly Rest Period

19th December 2017

The ECJ has recently provided a useful confirmation in respect of the right to a weekly rest period in accordance with the Working Time Regulations. Does this mean more flexibility for employers when it comes to allocation of rest periods?

By way of background, Article 5 of the Working Time Directive (the “Directive”) provides that “per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3.”

Under Regulations 10 and 11 of the Working Time Regulations, workers in the UK are entitled to a 24 hour rest period in every seven day reference period. Under UK law, the Working Time Regulations provide for employers to choose from a reference period of either seven days or 14 days. In the Portuguese case of Maio Marques da Rosa v Varzim Sol, Mr Da Rosa was employed by a casino that operated seven days per week. During 2008-2009, Mr Da Rosa worked seven consecutive days on some occasions. However in 2010, the casino implemented a schedule change in which employees would only work for six consecutive days.

Following his redundancy, Mr Da Rosa brought claims that he had been denied his weekly rest period. He claimed that during 2008-2009, he was required to work seven consecutive days and that his 24 hour rest period should have been granted on the seventh day. Mr Da Rosa took the case to the Spanish Court of Appeal who referred the matter to the ECJ. The Advocate General also provided an opinion on the case with which the ECJ agreed. The ECJ stated that the Working Time Directive should be construed as allowing the weekly rest period of 24 hours to be granted at any time within the reference period. It does not need to be granted on the seventh day in particular. On that basis, a worker in Portugal could therefore work for 12 consecutive days if the weekly rest period of 24 hours is granted on the first day of the first reference period and the last day of the second reference period.

Employer Considerations

The decision in Da Rosa is quite a welcome decision and confirms that employers do indeed have some flexibility in respect of the weekly rest period. In the UK employers can utilise a 14 day reference period. Therefore if the 48 hour rest period is granted at the beginning of the first reference period and at the end of the second reference period, employees in the UK could work for 24 consecutive days.

The key point is that the weekly rest period to which workers are entitled under the Working Time Regulations must be granted at some point within the reference period as opposed to a prescribed seventh or fourteenth day.

 

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