R the United Road Transport Union (Appellant/Claimant) v The Secretary of State for Transport (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis:,Lord Justice Elias:,Lord Justice Jackson: |
| Judgment Date | 29 July 2013 |
| Neutral Citation | [2013] EWCA Civ 962 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/2241 |
| Date | 29 July 2013 |
[2013] EWCA Civ 962
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
HICKINBOTTOM J
CO/1809/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Elias
and
Lord Justice Davis
Case No: C1/2012/2241
John Hendy QC and Philip Mead (instructed by Slater & Gordon (UK) LLP) for the Appellant.
Tim Eicke QC (instructed by Treasury Solicitors) for the Respondent.
Introduction
This is an appeal from a reserved judgment of Hickinbottom J, sitting in the Administrative Court in Manchester, dated 13 July 2012. By it he dismissed the application of the claimant, the United Road Transport Union, for judicial review, permission having previously been granted by Owen J. Permission to appeal was refused by the judge and by Sir Richard Buxton on the papers; but was granted, after an oral hearing, by Laws LJ on 1 March 2013.
By the proceedings the claimant had sought to challenge decisions of the defendant, the Secretary of State for Transport, to refuse to accede to the claimant's request that there be introduced secondary legislation having the effect of providing for commercial road transport workers a civil remedy (in particular in the form of access to an employment tribunal) if they were required to work in contravention of regulations providing for breaks and rest periods, in line with the access to a tribunal which is available for the generality of other workers in a comparable situation. What is said is that the refusal to introduce any such secondary legislation in respect of commercial road transport workers breaches either the principle of equivalence; or the principle of effectiveness; or both.
The judge would have none of it. In a careful and thorough judgment he rejected the application on all grounds advanced ( [2012] EWHC 1909 (Admin)).
On this appeal the appellant Union was represented by Mr John Hendy QC with Mr Philip Mead (both of whom appeared below). The respondent Secretary of State was represented by Mr Tim Eicke QC (who also appeared below).
Working time legislation
To make any sense of the nature of the proceedings and the issues raised, it is necessary to go straightaway to the background legislative regime and other relevant materials.
These are fully set out in the judgment below: and Mr Hendy also in argument helpfully guided us through the salient aspects. An exhaustive summary is not here called for.
Mr Hendy took as his starting point Article 288 of the Treaty on the Functioning of the European Union to the effect that a European Regulation is to have general application, be binding and be directly applicable in all Member States. He went on to refer to Articles 31, 47, 51 and 52 of the Charter of Fundamental Rights of the European Union (which by Article 6 of the Treaty of Lisbon has legal effect). In particular, Article 31 provides that every worker has the right to working conditions which respect his health, safety and dignity; and to limitation of maximum working hours, rest periods and annual leave. Article 47 provides, among other things, that:
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in accordance with the conditions laid down in this Article…"
We were then taken to the Consolidated General Working Time Directive 2003/88/EC. The purpose and scope of the Directive, as stated in Article 1, was to "lay down minimum safety and health requirements for the organisation of working time".
Thus by Article 3 it was stipulated that Member States take the necessary measures to ensure that every worker "is entitled" to a minimum daily rest period. Article 4 relates to breaks; Article 5 to weekly rest periods; Article 7 to annual leave. Each is drafted by reference to what a worker is said to be "entitled". Article 8 relates to night work; and so on.
Article 14 states that the Directive does not apply where other community instruments contained more specific requirements relating to the organisation of working time for certain occupations. Article 20 states, subject to proviso, that Articles 3, 4, 5 and 8 should not apply to mobile workers (as defined).
No enforcement mechanism is set out in the Directive, as the judge noted. That is therefore left to Member States.
This Consolidated General Working Time Directive had, in its previous versions, been implemented in the UK by the Working Time Regulations 1998, as amended ("the 1998 Regulations"). It was not suggested that the 1998 Regulations do not properly transpose the requirements of the Directive. But, consistently with the Directive, the 1998 Regulations do not apply, in the stated respects, to mobile workers: see Regulation 18(4).
The scheme of enforcement provided by the 1998 Regulations is, nevertheless, to be noted (see in particular Regulations 28 to 30). Put shortly, failure to comply with the 1998 Regulations by an employer is a criminal offence. Further, there is statutory supervision and enforcement by the relevant Executive: which, with regard to relevant road transport workers, is the Vehicle and Operator Services Agency ("VOSA") which is empowered and required to enforce the relevant requirement in relation to relevant road transport users: Regulation 28(6). Moreover, by Regulation 30, it is specifically provided that a worker "may present a complaint to an employment tribunal" on the footing that his employer "has refused to permit him to exercise his rights" under the relevant specified Regulations. If that is established, the tribunal is required, by Regulation 30(3), to make a declaration to that effect and may make an award of compensation. In addition, an employee is, under Regulation 32, to be regarded as unfairly dismissed if dismissed by reason of refusal to comply with a requirement of an employer in contravention of the 1998 Regulations.
Thus far, however, the position of mobile workers is not specifically covered.
This is addressed elsewhere. For example, Directive 2005/47/EEC, implemented by the Cross-border Railway Services (Working Time) Regulations 2008, relate to cross-border railway workers. But for present purposes the relevant starting point is Directive 2002/15/EC ("the Road Transport Working Time Directive") taken with Regulation (EC) No. 561/2006 (before us styled "the Drivers' Hours Regulation").
The Road Transport Working Time Directive in its recitals records past inability to reach agreement, in spite of "intensive negotiations", on how the position of mobile workers was to be addressed and that "more specific" provisions were necessary "to ensure the safety of transport and the health and safety of the persons involved" (recitals (3) and (4)). Recital (10) provides as follows:
"(10) In order to improve road safety, prevent the distortion of competition and guarantee the safety and health of the mobile workers covered by this Directive, the latter should know exactly which periods devoted to road transport activities constitute working time and which do not and are thus deemed to be break times, rest times or periods of availability. These workers should be granted minimum daily and weekly periods of rest, and adequate breaks. It is also necessary to place a maximum limit on the number of weekly working hours."
As Mr Hendy pointed out, three purposes are there identified in that recital: road safety, prevention of distortion of competition and safety and health of the mobile workers. This is similarly reflected in the provisions of Article 1 as to the purpose of the Directive. Article 2 states that the Directive applies to employed mobile workers (as thereafter defined) of the relevant category. There are then provisions requiring Member States to "take the measures necessary to ensure" maximum weekly working time, breaks, rest periods and night work a there prescribed. Article 11 of the Directive provides as follows:
"Article 11
Penalties
Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied. The penalties thus provided for shall be effective, proportional and dissuasive."
Accordingly it is left to Member States to lay down such a system of penalties.
Turning to the Drivers' Hours Regulation, that too contains extensive recitals. Recital (1) identifies competition as one of its purposes, along with improved working conditions and road safety. Recital (17) is to broadly similar effect. Recital (27) provides as follows:
"(27) It is desirable in the interests of clear and effective enforcement to ensure uniform provisions on the liability of transport undertakings and drivers for infringements of this Regulation. This liability may result in penal, civil or administrative penalties as may be the case in the Member States."
Article 1 then provides:
"This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and safety. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved...
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