Law: Our Learned Friend - Employees win 48-hour battle

AS PREDICTED, the current raft of employment changes will mean more costs for employers, more time off (theoretically) and better conditions for employees, and inevitably, more work for employment lawyers.

When the Working Time Directive came into effect on 1 October last year, employment lawyers themselves predicted that the Regulations would lead to litigation to settle exactly what the Regulations mean. That has happened.

The first case, heard on 3 March, was Barber & others v RJB Mining. It concerned Regulation 4 which sets a maximum working time which must not exceed 48 hours a week. The case was brought by five members of the pit supervisors union, NACODS, who had worked more than an average of 48 hours per week since 1 October 1998. The employees had refused to sign opt out agreements issued by the employer, but applied for a declaration from the court clarifying their legal position and injunctions restraining RJB from (1) requiring them to work until such time as their average working time fell within that limit, and/or (2) subjecting them to any detriment in consequence.

The judge, Mr Justice Gage, held that the employees were entitled to a declaration to clarify the position under their contracts of employment. Armed with that, the employees were then entitled to refuse to continue working until their average working time came within the specified limit. The judge did not grant either of the injunctions, and also held that he had no jurisdiction to decide whether the employer was in breach of its Regulation 4 duty.

The implications of this judgment for employers are enormous. The common perception was that the Regulations would only be enforced through criminal proceedings brought against the employer by the Health and Safety Executive - this case has disproved that, and shows that employers have to put their houses in order or risk similar litigation.

Employers also have to take account of the fact that though the breach of the 48-hour limit was only temporary that was not considered material, nor was the fact the proceedings were being used as a tactical manoeuvre by the union. The principal issue was that the employees were entitled to a declaration as to their rights and as a result, to exercise their individual right not to work if they so chose.

Employers can ask their employees to work in excess of 48 hours a week in emergencies, but employees can refuse. Where they agree, they should be asked to sign individual opt out agreements.

This case shows that the Regulations give employees a powerful negotiating lever. This case may be the first under the new legislation, but it will not be the last.

William Dawson is managing partner of the employment department at City law firm Simmons & Simmons