No obligation to provide weekly rest break after six consecutive working days


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Posted on 16 Nov 2017

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The Working Time Directive (WTD) should not be interpreted as requiring a weekly rest period of 24 hours to be granted on the seventh day following six consecutive working days.  Instead it should be interpreted as requiring the 24 hour weekly rest period to be provided within each seven-day period.  This interpretation also benefits the worker, as it enables consecutive rest days to be given to the worker at the end of one reference period and at the start of the next. 

In the UK, where an employer has opted to provide a 48-hour rest period in a 14-day reference period, workers could in theory work for 24 consecutive days, as long as other provisions of the WTD (such as 11 hours' daily rest and the maximum working week) are complied with and it does not breach the employment contract or any collective agreement.    

Facts

In Marques da Rosa v Varzim Sol - Turismo, Jogo e Animacao SA, Mr Marques da Rosa worked in a casino which opened seven days a week.  During 2008-2009, he occasionally worked for seven consecutive days due to a rotating work schedule.  From 2010, the employer altered the schedule so that employees worked no more than six consecutive days.

Following the termination of his employment, Mr Marques da Rosa claimed that he had been denied his weekly rest periods. The Portuguese court asked the European Court of Justice (ECJ) whether the right under the WTD to an uninterrupted rest period of 24 hours “per each seven-day period” should be interpreted as meaning that the weekly rest period must be granted at the latest on the seventh day following six consecutive working days. Alternatively, was the employer free to choose, for each seven-day period, when to grant the weekly rest period?

Judgment

The ECJ held the WTD requires Member States to ensure that every worker enjoys, during a seven-day period, a minimum uninterrupted rest period of 24 hours, but it does not specify when that minimum rest period must be granted.  It considered that the seven-day period should be regarded as a reference period, within which the minimum rest period must be provided.  

Therefore, the WTD should not be interpreted as requiring a weekly rest period of 24 hours to be granted on the seventh day following six consecutive working days.  Instead, it should be interpreted as requiring that weekly rest period of 24 hours to be provided within each seven-day period.

The ECJ pointed out that the increased flexibility that its interpretation allows to the employer may also be beneficial to the worker, as it would enable consecutive rest days to be given to the worker at the end of one reference period and at the start of the next.

Implications

The decision means that a worker in Portugal may be required to work up to 12 consecutive days, if a weekly rest period is granted on the first day of the first seven-day period and the last day of the following seven-day period.  In the UK, employers have the option to provide a 48-hour rest period in a 14-day reference period.  Where employers have chosen this option, this could in theory mean that workers could work for 24 consecutive days, as long as other provisions of the WTD (such as 11 hours' daily rest and the maximum working week) are complied with and it does not breach the employment contract or any collective agreement.    

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