R (on the application of the United Road Transport Union) v Secretary of State for Transport  EWHC 1909 (Admin); (2012) EMPLR 172
Working Time Directive - application to mobile workers - adequate rest recourse to tribunal
13 July 2012
Queen's Bench Division
The Working Time Directive does not apply to mobile workers except to require Member States to ensure mobile workers are entitled to adequate rest. Two other European measures, the Road Transport Regulation and the Road Transport Working Time Directive impose obligations on commercial drivers and require a system of penalties for breach. These were implemented in the UK by the Road Transport (Working Time) Regulations 2005. These imposed obligations on drivers in respect of breaks and rest periods, enforceable with criminal penalties.
In this case the union argued that drivers should have recourse to an employment tribunal, as non-mobile workers have under the Working Time Regulations 1998. The union's principal argument relied on the ‘principle of equivalence' - that Member States should ensure that workers have the same rights to enforce European law as they have to enforce equivalent domestic rights.
The High Court disagreed. The principal of equivalence did not require such rights to be provided, as there were no equivalent domestic rights. The primary purpose of the European legislation was the organisation of road transport and road safety. Anyway, mobile workers who were denied entitlement to breaks could sue for breach of the employer's implied duty not to require employees to carry out their duties in an illegal way; and anyone penalised by their employer for insisting on taking the required breaks could rely on the whistle-blowing rules in the Employment Rights Act 1996.
Law and Practice
The status of employment rights on the transfer of an undertaking is an extremely complex area of...