11 January 2018

Working Time: How many consecutive days can workers lawfully work without a weekly rest break?

In a case that may be of particular relevance to boarding schools, the European Court of Justice (ECJ) has provided clarity as to when an employer must provide a weekly rest period under the Working Time Directive (WTD).

The WTD makes provision for various rest periods and breaks for workers, including the entitlement to a period of 24 hours uninterrupted rest within a seven day reference period.

In the recent case of Maio Marques da Rosa v Varzim Sol the ECJ considered whether the WTD allows for the 24 hour weekly rest period to be given on any day in the seven day reference period or whether it requires the rest period to be granted on the seventh day following six consecutive working days.

The interpretation is important as, if it is the former, a worker could technically be required to work for 12 consecutive days, subject to the employer complying with the other requirements of the WTD.

Facts

Mr Maio Marques Da Rosa (the employee) worked for Varzim Sol (the casino) as a casino operator.  The casino operated for 12 hours a day on 364 days of the year.  During the period from 2008 to 2009, he was occasionally required to work for seven consecutive days.

After he was made redundant, he claimed that the casino had not given him a weekly rest period of 24 hours in accordance with Portuguese law. In particular, he argued that the weekly rest period was not provided at the appropriate time and that it should have been given, at the latest, after six consecutive working days.

Before the case reached the ECJ, the Advocate General gave an opinion in favour of the casino. He argued that the WTD should not be interpreted as requiring a weekly rest period on the seventh day following six consecutive working days but instead required it to be granted within each seven day period.

The ECJ agreed with this view and confirmed that the 24 hour weekly rest period may be granted on any day in the seven day reference period.

Comment 

This case may be of particular relevance to boarding schools where, for example, it is necessary for a member of boarding staff to work for more than seven consecutive days. The ECJ’s decision makes it clear that this would not breach the WTD, provided the worker is given 24 hours consecutive rest at some point during each seven day reference period.

In the UK, the Working Time Regulations (WTR), in implementing the WTD, provided that employers may opt to provide a 48-hour rest period in a 14 day reference period instead of a 24-hour rest period in a seven day reference period. As a result of the ECJ’s decision, an employer in the UK could, technically, require an employee to work for 24 consecutive days, provided the other entitlements set out in the WTD are satisfied. The case, was, however, concerned with the WTD, not the WTR, and any requirement to work 24 consecutive days could be open to challenge.

Whilst this clarification is to be welcomed, schools should continue to apply care when determining rotas for staff who work atypical hours. Aside from the requirements of the WTR, there will, inevitably, be considerations of risk, health and safety and efficiency where staff are required to work for consecutive periods without rest and a common sense approach should be taken.

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About the Author
Oliver Daniels, Senior Associate Solicitor
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