The United Road Transport Union, R (on the application of) v Secretary of State for Transport

The principles of equivalence and effectiveness do not require identical enforcement mechanisms for different European Union working-time rights. Equivalence compares enforcement of a European Union right with enforcement of a comparable domestic right; it does not impose uniformity between rights that both derive from European Union law. The effectiveness principle requires national procedures to avoid making the exercise of European Union rights virtually impossible or excessively difficult. A comprehensive system of inspections, effective and dissuasive penalties, and judicial review of enforcement failures may satisfy that requirement. A direct employment tribunal claim against an employer is not necessarily required, particularly where the regulatory scheme imposes obligations and criminal liability on workers as well as employers.

The claimant trade union sought judicial review of the Secretary of State’s refusal to introduce secondary legislation giving mobile road transport workers a direct employment tribunal remedy for breaches of requirements concerning breaks and rest periods. General workers had an individual civil remedy under the Working Time Regulations 1998, whereas the road transport scheme relied principally on inspections and penalties under the Road Transport (Working Time) Regulations 2005, as amended.

The Union argued that the absence of a comparable individual remedy breached the European Union principles of equivalence and effectiveness. The central issues were whether equivalence could compare two rights derived from European Union measures, and whether the existing enforcement scheme made exercise of the relevant rights virtually impossible or excessively difficult.

1. Application dismissed. The Secretary of State’s refusal to introduce an express employment tribunal remedy for mobile road transport workers was lawful.
2. The principle of equivalence requires a material comparison between enforcement of a right derived from European Union law and enforcement of a comparable right derived from domestic law. It does not require equivalent treatment of different rights that both derive wholly from European Union law. The rights under the general and road transport working-time schemes were both European in origin, regardless of whether they were implemented by a Directive, Regulation or domestic enforcement legislation (paras [38]-[74]).
3. Paquay v Société d’Architectes Hoet & Minne SPRL [2007] ECR I-8513; [2008] ICR 420 did not establish the wider equivalence principle relied upon. Its reasoning was better understood, consistently with Oyarce v Cheshire County Council [2008] EWCA Civ 343, as concerning effective transposition rather than equivalence (paras [51]-[63]).
4. The effectiveness principle asks whether national rules make exercise of European Union rights virtually impossible or excessively difficult. The road transport scheme contained a mandatory system of penalties required to be effective, proportionate and dissuasive, supported by inspection and notice powers. Enforcement failures by the Secretary of State or VOSA could be challenged by judicial review (paras [76]-[85]).
5. The court accepted that workers could obtain protection under the whistle-blowing provisions of Part IVA of the Employment Rights Act 1996 if disadvantaged for refusing unlawful work or asserting the relevant rights. The scheme’s structure, including potential criminal liability for workers, also made a direct civil claim against an employer materially different from the general working-time regime (para [84]).
6. The Union produced no evidence that the existing enforcement system was ineffective in practice. The court therefore could not conclude that the absence of a direct individual remedy rendered exercise of the rights practically impossible or excessively difficult (paras [84]-[87]).