Barber & Ors V RJB Mining was the first decision of the UK courts dealing with the application of the Working Time Regulations 1998, which came into force on 1 October.
Unusually, the decision was made in the High Court, not an employment tribunal. The reason for this lay in the circumstances of the case and the need for a swift remedy. It provided the first insight into the view the courts will take in relation to the key provisions of the regulations relating to the maximum 48-hour week. It established that an employee who has not opted out of the right to work a 48-hour maximum week over a 17-week reference period, but has worked 48 hours before the period has expired, may refuse to work until his average working hours over that period fall to the required level.
This will mean the employee will often be entitled to an additional period of paid leave.
The regulations provide that an employee's working time (including overtime) will not exceed an average of 48 hours for each seven days in a 17-week period (Regulation 4(1)) and that an employer should ensure this limit is complied with. If it does not do so it will be guilty of a criminal offence (Regulation 4(2)).
An employee can 'opt out' (Regulation 5) but cannot be forced to do so and, if suffering any detriment through exercising these rights, will have a right to compensation under the anti-detriment provisions in the regulations.
In this case, five members of Nacods, the pit deputies union, working at four Yorkshire pits, found they were bound to exceed the 48-hour limit over the 17-week period unless they stopped working for several weeks.
Since they had not opted out of the 48-hour requirement they contended they had the right to stop working. RJB Mining had asked them to opt out, but the union advised its members not to sign the agreement until wage negotiations had been concluded.
The problem arose through the overtime the deputies had to work to maintain their standard of living and which RJB needed them to work to keep some of the mines open.
When the negotiations failed and the deputies realised they had exceeded their quota, they objected to working any further and only did so 'under protest' and without prejudice to their rights.
The deputies needed to get the matter to court quickly as it was not clear whether they were entitled to take this course and could be held to be acting illegally if RJB suffered loss as a result.
The deputies wanted to bring the matter to the High Court, where they could obtain an expedited hearing. This gave rise to the first issue – whether the High Court had jurisdiction.
Nicholas Underhill QC argued (for RJB) that the regulations provided an exhaustive regime for determination of disputes and gave exclusive jurisdiction to employment tribunals. But the High Court accepted Brian Langstaff QC's view that the regulations operated automatically to vary all contracts of employment in relation to hours of work, thereby making this a contractual dispute within the High Court's jurisdiction.
The second principal issue was the interaction of regulations 4(1) and 4(2). RJB argued that Regulations 4(1) and (2) should be taken together, the effect being that the regulations did not impose a mandatory requirement but simply required the employer to take all reasonable steps to ensure the limit was complied with.
The court held that the two sub-clauses should be looked at separately, that one had to distinguish the contractual consequences of the regulations from the criminal consequences and that Regulation 4(2) only related to the question of potential criminal liability against the employer.
The 48-hour limit in Regulation 4(1) was a mandatory requirement. This meant that once the maximum hours had been reached in any reference period the employee could legitimately refuse to work until the average fell.
The deputies therefore won. (While making no finding on this, the court also indicated that RJB Mining would struggle to show that it had taken all reasonable steps to prevent the maximum hours requirement being breached.)
It is not clear whether the leave to appeal will be pursued. In the meantime, employers will have to ensure that time-recording procedures are in place and are regularly reviewed. If not, they could find themselves at the mercy of key employees, not to mention criminally liable.
Peter Frost is a partner at Herbert Smith.