Associated British Ports v Bridgeman

Where an employer relies on the derogation for activities involving continuity of service, the proper construction of the derogation may require consideration of whether continuity is established separately for each right from which derogation is sought. The question is governed by the restrictive approach required for derogations from the minimum rest rights in the Working Time Directive and by the requirement to safeguard workers’ health and safety. Where the domestic court cannot resolve the relevant European-law issue with complete confidence, it should refer the issue for a preliminary ruling. In assessing continuity of service, the focus is on the worker’s activities rather than the employer’s general operational or economic needs. A tribunal is entitled to find continuity where the worker cannot safely or practically leave an ongoing operation, and its refusal to treat additional staffing as eliminating continuity is not perverse if supported by its findings.

An Employment Tribunal found that Associated British Ports had breached Regulation 10 of the Working Time Regulations 1998 by failing to provide Mr Bridgeman with 11 consecutive hours’ daily rest. It held that the employer was entitled to the Regulation 21 derogation for rest breaks under Regulation 12, but not for daily rest under Regulation 10. The employer appealed the construction of Regulation 21. Mr Bridgeman cross-appealed the finding that the pilotage activities involved a need for continuity of service.

The Employment Appeal Tribunal, sitting alone, considered whether Article 17(3)(c) of Directive 2003/88/EC required continuity of service to be established separately for each right from which derogation was claimed, or generally without reference to the particular right. It also considered whether the tribunal’s continuity finding was perverse or inadequately reasoned.

1. Preliminary reference. The appeal raised a critical question concerning the proper construction of Article 17(3)(c) of Directive 2003/88/EC and Regulation 21 of the Working Time Regulations 1998. The issue was whether continuity of service had to be established separately for each right from which derogation was sought, or whether it could be established generally for the relevant activities.
2. The court considered that the reasoning in Hughes v Corps of Commissionaires (No. 2), concerning the need for objective reasons before Regulation 21 could be engaged, was strongly arguable as applying equally to daily rest under Regulation 10 and rest breaks under Regulation 12. That provisional view was reinforced by the restrictive approach required to derogations from Directive-derived rights and by the Directive’s health and safety purpose.
3. The court was not satisfied that the European-law issue could be resolved with complete confidence. It therefore referred the question to the ECJ for a preliminary ruling and directed the parties to prepare a draft reference under CPR 68.2 and PD68.
4. Cross-appeal. The Employment Tribunal correctly focused on the activities of the worker, rather than the employer. Its findings that pilotage depended on unpredictable factors, that a pilot might be unable safely or practically to leave a vessel, and that the consequences of doing so could be disastrous supported the conclusion that continuity of service was required.
5. The tribunal was entitled to reject double-staffing as a solution on the facts. Its conclusion was neither perverse nor inadequately reasoned. The cross-appeal was dismissed.

• Employment Appeal Tribunal: The appeal concerning Regulation 10 was referred to the ECJ for a preliminary ruling on the construction of Article 17(3)(c) of Directive 2003/88/EC. The respondent’s cross-appeal was dismissed.
• Employment Tribunal: The tribunal found a breach of Regulation 10 and awarded £200 compensation. It rejected the Regulation 12 complaint, holding that the Regulation 21 derogation applied to rest breaks but not daily rest.