Kings Employment Team secures reference to the CJEU
5 April 2012
Nicholas Siddall of Kings Chambers’ employment team has been successful in obtaining a reference to the CJEU as to the proper application of the derogation under the Working Time Regulations 1998 (“WTR”) from the EAT in Bridgeman-v-Associated British Ports.
This matter related to a test claim by 100 Humber pilots against the Respondent as the statutory body with the relevant duty to control the operation of the Humber estuary. The Claimant contended that the system of work adopted denied him the requisite rest breaks and daily rest. The Claimant was successful at first instance in that the Employment Tribunal found that continuity of service was made out as regards the right to rest breaks but not as regards daily rest.
ABP then appealed and the issue was whether the requirement for “continuity of service” is severable or applies to all rights exempted by Regulation 21 WTR once made out. The Claimant cross appealed and argued that the EAT ought to adopt a purposive construction of the WTR, to read words into the WTR to give effect to CJEU jurisprudence or finally to seek a reference to the CJEU to allow it to give definitive guidance as to the proper application of the derogation in the WTR/Directive in those circumstances.
The EAT (Supperstone J) in a judgment dated April 4th 2012 has referred the matter to the CJEU
67. In my view in order to determine the proper construction and application of reg.21 to the facts of the present case it is necessary to construe the phrase “activities involving the need for continuity of service or production” in article 17(3)(c) of the Directive. In particular there is a need to know whether the requirement of continuity of service has to be established separately as regards each right under the Directive from which derogation has been made or whether continuity of service should be addressed generally without consideration of the specific rights from which derogation has been made. In the present case the facts have been found and in my judgment this Community law issue is critical to my final decision. I am not satisfied that the issue can be satisfactorily resolved in the absence of a reference to the ECJ. In these circumstances I have decided to refer the question of the proper construction of article 17(3)(c) of the Directive to the ECJ for a preliminary ruling.
The potential impact of the reference and the best advice to be provided to clients as a result of the same shall be addressed in an upcoming seminar.