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

The Court of Appeal dismissed the Union's challenge to the Secretary of State's decision not to introduce secondary legislation giving employed commercial road transport workers access to employment tribunals for breaches of working-time rules. The court applied the EU law principles of equivalence and effectiveness. It held that the principle of equivalence did not assist because the comparison relied upon by the Union was between two sets of rights both derived from EU law (the General Working Time Directive and the Road Transport Working Time Directive and the Drivers' Hours Regulation), so the domestic-equivalent test did not arise. On effectiveness the court held that Member States may provide enforcement by means of criminal, administrative or penal sanctions and that the Road Transport (Working Time) Regulations 2005, read with the Drivers' Hours Regulation and enforcement by VOSA, did not render the exercise of EU-derived rights practically impossible or excessively difficult. The court emphasised that the Directive and Regulation expressly left penalties and enforcement measures to Member States, that VOSA had wide investigatory and enforcement powers, and that other legal protections (including whistleblower protection and potential contractual claims) were available in appropriate circumstances.

Background and parties: The claimant, the United Road Transport Union, representing mainly commercial vehicle drivers, sought judicial review of two ministerial decision letters declining to introduce secondary legislation to give mobile road transport workers a specific route to employment tribunals for breaches of working-time rules. The defendant was the Secretary of State for Transport. The claim challenged the refusal on the grounds that it breached the EU law principles of equivalence and effectiveness.

Nature of the application and relief sought: The Union sought an order quashing the Secretary of State's decisions and effectively requiring the introduction of secondary legislation so that mobile workers would have access to employment tribunals where required to work in contravention of regulations on breaks and rest periods.

Procedural posture: The claim came to the Court of Appeal on appeal from Hickinbottom J's reserved judgment of 13 July 2012 in which the Administrative Court dismissed the claimant's application ([2012] EWHC 1909 (Admin)). Permission to appeal was initially refused by the judge and on the papers but later granted by Laws LJ on 1 March 2013.

Issues framed:

• Whether the Secretary of State's refusal to introduce tribunal access for mobile road transport workers breached the principle of equivalence.
• Whether that refusal breached the principle of effectiveness by rendering practically impossible or excessively difficult the exercise of rights conferred by the Road Transport Working Time Directive and the Drivers' Hours Regulation.

Court's reasoning (concise):

• Equivalence: The court followed authority (in particular Oyarce) that the principle of equivalence requires comparison between enforcement of EU-derived rights and analogous domestic causes of action. Here both sets of rights relied on derive from EU law, so the equivalence principle did not provide a ground to require identical domestic remedies. Attempts to extend equivalence on the basis of Paquay were rejected as not establishing a broader test.
• Effectiveness: The court acknowledged that some element of 'right' can be ascribed to mobile workers but emphasised that the Road Transport Working Time Directive and the Drivers' Hours Regulation intentionally left penalties and enforcement measures to Member States. The United Kingdom implemented enforcement principally via criminal and administrative sanctions and by empowering VOSA with inspection, notice and prosecution powers under the 2005 Regulations and Schedule 2. The court held that such a scheme did not make the exercise of EU rights 'practically impossible or excessively difficult'. The judge also noted lack of evidence that the UK enforcement regime was ineffective, and that alternative protections — for example, whistleblower provisions and possible contractual claims — were available. The differing purposes of the Directives and Regulation (road safety and competition as well as workers' health) supported the national enforcement design.

Subsidiary findings and wider context: The court recorded that the Road Transport instruments deliberately approached mobile workers differently from the General Working Time Directive. It observed that the Directives and Regulation contemplated penal, civil or administrative penalties and that Member States were left to decide appropriate enforcement measures. The court also noted that the remedy of judicial review remains available to challenge failures of VOSA or the Secretary of State to enforce.

Appeal dismissed. The court held that the principle of equivalence did not apply because the relevant rights in each case derived from EU law, and that the principle of effectiveness was not breached because the Road Transport Working Time Directive and Drivers' Hours Regulation expressly left enforcement and penalties to Member States and the enforcement regime provided by the 2005 Regulations and VOSA did not render EU rights practically impossible or excessively difficult to enforce.

Appeal from a reserved judgment of Hickinbottom J (Administrative Court, Manchester) dated 13 July 2012 ([2012] EWHC 1909 (Admin)). Permission to appeal was initially refused by the judge and on the papers but granted by Laws LJ on 1 March 2013. This judgment is the Court of Appeal decision ([2013] EWCA Civ 962).