84 hour average working week not a breach of the EU Working Time Directive

This case concerned a charitable foundation in Norway, Stiftelsen Fossumkollektivet (SF). SF offers residential care for young people with drug and/or alcohol problems and has therapists living on site with the patients.

SF introduced a change to their working arrangements so that the resident therapists would work for 7 days and then have a 7 day rest period. During their working days, the therapists would work from 7am until 11pm (with a 2 hour break) and be required to be available during the night.

Some of the therapists refused to accept the new working patterns and were issued with notices of dismissal and offered re-engagement on the new terms. The therapists challenged the new arrangements as they felt they breached the EU Working Time Directive.

The Norwegian court sent three questions for consideration by the EFTA (European Free Trade Association Court), one of which concerned this issue.

The therapists argued that because they were entitled to a daily rest period of 11 hours and a weekly rest period of 24 hours (totalling 90 hours) this only left 78 hours each week that they could work.

The EFTA Court disagreed with this and held that an 84 hour working week was capable of being compatible with the EU Working Time Directive. The 48 hour limit could be varied subject to:

• The worker consenting; and
• Provided that adequate protection is given to the health and safety of the worker.

The requirement to provide daily and weekly rest periods is subject to the exemptions set out in the legislation. One of these relates to activities requiring continuity of service, including in regards to services connected with the treatment and/or care provided by hospitals or similar establishments. If this applies and rest periods are missed, compensatory rest should be provided immediately following the working time the compensatory rest is supposed to counteract. However, there is also scope for exceptional circumstances where compensatory rest cannot be provided for objective reasons, in these circumstances, workers should be given appropriate protection.

It was also relevant that the reason the therapists were resident was because it was beneficial for the young people to have the same therapists present for long periods of time. This meant it was possible that the activities being performed by the therapists could make it impossible, for objective reasons, to grant periods of rest. On this basis, provided that the requirements of the exemptions were met, an 84 hour working week in a residential care arrangement could be compatible with the EU Working Time Directive.

Points to note

• The EU Working Time Directive is incorporated into UK law by the Working Time Regulations 1998.
• Although EFTA court decisions are not strictly binding on tribunals in the UK, they do contribute to the understanding of the EU Working Time Directive.
• This case gives helpful confirmation that an opt-out of the 48 hour working week is not limited by the rest period requirements (provided an exemption can be relied upon).
• This case is also a useful example to point to if there is challenge over similar arrangements (for example when providing live-in care) where you are seeking to rely on one of the rest period exemptions.
• It is also useful to have in mind that an employee cannot bring an Employment Tribunal claim about not having been provided with rest breaks unless they have sought to exercise that right and their request has been refused.

For more information

If you require advice in relation to the obligation to provide rest periods and the available derogations, please contact Faye Rush.