Working time: All workers in road transport industry excluded from scope of Working Time Directive

In Bowden and others v Tuffnells Parcels Express Ltd 4.10.01 ECJ Case C-133/00, the ECJ holds that all workers in the road transport sector, including office staff, are excluded from the scope of Council Directive 93/104/EC concerning certain aspects of working time.

Mrs Bowden, Mrs Chapman and Mrs Doyle (together "the employees") are employed as part-time clerical workers by Tuffnells Parcels Express Ltd ("Tuffnells"), which operates a major parcel delivery service. Mrs Bowden receives and sorts consignment notes and Mrs Chapman and Mrs Doyle enter information from those notes into a computer.

Under the terms of their contracts, the employees cannot be asked to work in actual transport operations. By contrast with their full-time colleagues, they have no entitlement to paid holiday, although they may choose to take unpaid holiday. Following the entry into force of the Working Time Regulations 1998 ("the Regulations"), the employees asked Tuffnells for paid annual leave. Tuffnells refused and the employees brought a claim in an employment tribunal. The tribunal held that they were not entitled to annual leave because they worked in the road transport sector, which was expressly excluded from the scope of the Regulations.

The employees appealed to the EAT, which referred a question to the European Court of Justice ("ECJ"). Essentially, it asked whether, on a proper construction of Article 1(3) of Council Directive 93/104/EC concerning certain aspects of working time ("the 1993 Directive") - which the Regulations purport to implement - all workers employed in the road transport sector, including office staff, are excluded from the scope of the 1993 Directive and, if not, what criteria must be applied to identify the category of workers who are excluded.

The relevant law

Article 1(3) of the 1993 Directive states: "This Directive shall apply to all sectors of activity, both public and private, . . . with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training."

Implementing article 1(3), reg. 18 of the Regulations provides that the regulations dealing with entitlement to paid annual leave do not apply:

"(a) to the following sectors of activity:

air, rail, road, sea, inland waterways and lake transport."

The term "sector of activity" is undefined, but reg. 2 states: "In the absence of a definition in these Regulations, words and expressions used in particular provisions which are also used in corresponding provisions of the Working Time Directive . . . have the same meaning as they have in those corresponding provisions."

Social purpose of the Directive

The employees argued that in order to understand the scope of the exclusion of the road transport sector, account must be taken of the specific nature of the activities undertaken by the workers concerned rather than that of the employer. Only workers whose activities are directly linked to transport operations should be excluded from the scope of the 1993 Directive. Office workers do not fall into that category, they argued.

Moreover, they submitted that to take a literal interpretation of the 1993 Directive would deprive a considerable number of workers of the right to annual leave. This would run counter to the general social objective of the 1993 Directive, as seen in its reference to the Community Charter of the Fundamental Social Rights of Workers, in particular paragraphs 8 and 19, which state, respectively, that every worker in the European Community shall have the right to weekly rest and to paid annual leave, and shall enjoy satisfactory health and safety conditions in his or her working environment.

Literal interpretation supported

However, the ECJ stated that it was clear that, by referring to "air, rail, road, sea, inland waterway and lake transport", the Community legislature was indicating that it was taking account of those sectors of activity as a whole, whereas in the case of "other work at sea" and the "activities of doctors in training", it was choosing to refer precisely to those specific activities. Thus, said the ECJ, the exclusion of the road transport sector extended to all workers in that sector.

In support of that interpretation, the ECJ noted that when drafting the 1993 Directive, the Community legislature had deliberately rejected a Commission proposal to exclude mobile workers rather than entire sectors of activity. Various documents post-dating the 1993 Directive - such as a Commission White Paper, an opinion of the Economic and Social Committee and a resolution of the European Parliament - unanimously deplored the exclusion from the scope of the 1993 Directive of all workers in the road transport sector. The 16^th recital of the 1993 Directive itself states that it might be necessary to adopt separate measures in certain sectors that are excluded.

To deal with the exclusion of what it saw as entire sectors of industry, the Commission introduced Directive 2000/34/EC of the European Parliament and the Council ("the 2000 Directive") to amend the 1993 Directive. The amendments are due to be implemented by 1 August 2003 (and by 1 August 2004 in relation to doctors in training). The 2000 Directive extends protection to all workers in the sectors excluded by the 1993 Directive, subject to special provisions concerning mobile workers.

On this basis, the ECJ ruled that on a proper construction of article 1(3) of the 1993 Directive, all workers employed in the road transport sector, including office staff, are excluded from its scope. The amendments contained in the 2000 Directive are not merely declaratory, as can be seen from the third recital where it states that road transport is excluded from the scope of the 1993 Directive.

Comment

This case confirms that until the 2000 Directive is implemented, all workers in the road transport sector are excluded from the scope of both the Working Time Directive and the Regulations, regardless of whether they are actually involved in transport activities. On the facts of this case, the employees would have a potential claim for indirect sex discrimination, given the difference in treatment between full-time and part-time employees. They may also have a claim under the Part-Time Workers (Less Favourable Treatment) Regulations 2000.