The employee in this case worked as a harbour pilot. His work involved navigating vessels in and out of a dock. Demand for the service fluctuated. When demand was high the pilots worked more shifts and had shorter rest breaks and when demand was low they worked fewer shifts and had longer rest breaks.
The employee brought a claim in an employment tribunal asserting that his employer had unlawfully refused him a rest break of 20 minutes rest per 6 hours worked and a period of daily rest (11 consecutive hours of rest) for each 24 hour period he worked. He failed on the first claim but succeeded on the second.
The Working Time Regulations provide that rest break requirements do not apply where there is a need for continuous service and this was the focus of the case. The tribunal found that there was a need for continuity of service in relation to work at docks. This provided the employer with a ‘get out’ in relation the right to a rest break of 20 minutes per 6 hours because the question as to the need for continuity of service arose in relation to each distinct act of pilotage. However, the tribunal said that there was no exemption in relation to daily rest because when each act of pilotage was over (each should not have lasted no more than 11 or 12 hours) then each pilot should have been given a daily rest break.
The employer appealed, arguing that once it had been shown that there was a need for continuity of service both provisions could be excluded.. The alternative was that the requirement of continuity of service had to be established separately in respect of the “20 minutes in 6 hours” provision and again in respect of the “11 in 24 hours” provision.
The UK’s Working Time Regulations 1998 give effect to the European Working Time Directive (Directive 2003/88/EC). The Employment Appeal Tribunal said that the interpretation of European Community law was crucial to deciding how the exclusions had to be justified and so, unless they could resolve it with complete confidence, it was right to refer this question to the European Court of Justice in Luxembourg. The question was therefore referred.
Reference: Associated British Ports v Bridgeman