Remedies for road transport workers in relation to working time not unlawful

13 July, 2012

R (United Road Transport Union) v Secretary of State for Transport

In a judgment, handed down today (13 July 2012), Mr Justice Hickinbottom rejected a challenge by a Trade Union against the Secretary of State’s refusal to extend the right of appeal to the Employment Tribunal to road transport workers.  By its application, the Union sought to rely on the EU law principles of equivalence and/or effectiveness to establish that, as a matter of EU law, road transport workers, like most other workers, are entitled to apply to an Employment Tribunal for a declaration and/or compensation if they are required to work in contravention of EU regulations that regulate breaks and rest periods during working hours.  As a result, so the Trade Union, the current position under domestic law which provides for a regulatory enforcement mechanism (including the imposition of penalties), overseen in the UK by the Vehicle and Operator Services Agency (VOSA), was unlawful.

The judge confirmed that the rationale of the principle of equivalence is to protect a right derived from EU law to be treated – in procedural terms – less favourably than a comparable “domestic law right”. Distinguishing the judgment of the Supreme Court in FA(Iraq), the judge considered that, whereas FA(Iraq) was concerned with a comparator which was arguably of “mixed source”, the Union impermissibly sought to rely on a comparator right which was (also) derived solely from EU law.  Further and in any event, the judge noted that the regime under the general Working Time Directive was concerned solely with the health and safety of the worker and expressly required workers to be provided with rights or “entitlements” whereas the separate regime provided for road transport workers was concerned primarily with the harmonisation of conditions of competition between different modes of transport and road safety (as well as the health and safety of workers) and provided for obligations on those involved in road transport including the drivers themselves.  The latter regime, unlike the former, also makes express provision for a (regulatory) enforcement mechanism.

In considering the principle of effectiveness, the judge concluded that there was no evidence that the existing remedies, including the mandatory system of penalties were such as to render “practically impossible or excessively difficult the exercise of rights conferred” by EU law.

Time for the Union to apply for permission to appeal has been extended until 27 July 2012.

Tim Eicke QC, instructed by the Treasury Solicitor, acted for the Secretary of State in this case and was also leading counsel for the Secretary of State for the Home Department in the Supreme Court case of FA (Iraq).

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