For many businesses, scheduling the right number of workers with the right skills to cover operational needs on a daily, weekly or monthly basis is essential to the seamless continuity of service. However, often the actual scheduling of workers, or as commonly referred to, “workforce planning” can be quite a feat. This is due to the fact that holiday leave requests, unexpected illnesses and pressing client deadlines all have to be balanced against the rights of the workers’ to receive weekly rest from work.
But what is weekly rest from work?
Until quite recently, what is weekly rest for an adult worker was very much dependent on the sector in which a worker was employed and the type of work they undertook. Employers had a legal obligation, to ensure those workers received 24 hours uninterrupted rest time away from work each week, within each 7 day period that they worked or 48 hours within each 14 day period worked (Working Time Regulations 1998). This was subject to certain exemptions. Different rest arrangements for either compensatory or adequate rest applied to:
- Shift workers who have insufficient time between shifts to take their break or who work split shifts for example cleaners.
- Workers engaged in security and surveillance work which requires a permanent presence of the worker
- Workers who are in a managerial position and whose working time is neither measured or predetermined
- Family workers, and domestic servants
- Workers employed in excluded sectors, road transport, rail, air, sea, offshore and certain public and emergency services
- Worker who are employed in activities that require continuity of service or production, for example hospitals.
Many businesses falling outside the exempted situations had interpreted the regulations to mean that they were required to ensure that workers had at least one day off work each week. For any business providing a service for 364 or 365 days per year scheduling workers was no doubt problematic. However, the legal position as we know it is now subject to change following a recent judgement of the European Court of Justice (ECJ) in the case of Maio Marques da Rosa v Varzim Sol.
What happened?
Maio Marques da Rosa (Maio) a Portuguese worker was employed by a casino owned by Varzim Sol. The casino was open every day for 12 hours except on 24 December. During the last 4 years of Maio’s employment a new working pattern was introduced which meant that that he was never required to work more than 6 consecutive days before being offered a break. Prior to the introduction of this arrangement Maio had been expected to work 7 consecutive days a week on many occasions. On 16 March 2016 Maio’s employment came to an end on grounds of redundancy. He then commenced proceedings against his former employer. He alleged that Varzim Sol should have paid him overtime for each 7th day he worked. Interestingly, he also complained that he should have received a rest day after each 6 consecutive days of working.
What did the ECJ say?
The ECJ in ruled that there was no requirement for an employer to provide a worker with weekly rest directly after every 6 consecutive days of work. The court stated amongst other things that whilst the intention of the Working Time Directive was to promote the health and safety of workers, the national courts do have some flexibility as to how the intended protective measures are implemented.
In practical terms what this now means for employers is that within a 14 day reference period a worker can now be asked to work 12 consecutive days. That is provided they are given a weekly rest break of 24 hours at the beginning and the end of that 14 day period.
As always, if you have a legal query please get in touch with the FSB Legal Helpline on 0345 0727727 and we'll be happy to assist you.