Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on recent EU rulings on weekly rest periods.

The ECJ, in the case of Da Rosa and Varzim Sol Case C-306-16, had to interpret article 5 of Directive 2003/88.

The Advocate General in this case has determined that the Court should answer the question referred for a preliminary ruling on the basis that Article 2 of Directive 93-104-EEC of 23 November 1993, article 5 of Directive 2003/ADA/EC and article 31 of the Charter of Fundamental Rights of the European Union must be interpreted not as requiring the weekly rest period to be granted at the latest on the seventh day following six consecutive working days but as requiring such a period to be granted within each seven-day period.

This is an interesting opinion. When you consider section 13 of the Organisation of Working Time Act, it provides in subsection 3 that an employer may, in lieu of granting an employee in any period of seven days the rest period, grant to him or her in the next following period of seven days two rest periods each of which shall be a period of at least 24 consecutive hours.

In the case before the Advocate General, the Advocate General held that the expression “per each seven day period” appearing in article 5 of Directive 2003/88 does not contain any express reference to the laws of the member States and therefore must in accordance with the case law of the Court be given an independent and uniform interpretation throughout the European Union.

The Advocate General has proposed that the consequence of that interpretation is that pursuant to article 5, a worker may in principle be required to work up to 12 consecutive days as long as the other minimum requirements of Directive 2003/88 are complied with particularly relating to daily rest and maximum weekly working time.

It may be asked how this could apply in practice. As the seven day period is not specified as to when it starts you could have the following situation, namely that a worker received a 24 hour rest period on a Monday. The worker can then work for a further 12 consecutive days, effectively up to the following Saturday week, and will then receive a 24 hour rest period.

This would appear to be at variance with section 13 (3) of our legislation. In our legislation you could have a worker who would work for 7 days and could in the following seven day period get two days off. This would not appear to be in line with the Advocate General’s Opinion as that opinion is that in every seven day period there must be a 24 hour rest interval.

In practice it may not apply very often but it certainly is interesting that section 13(3) may not exactly be inline. What is also interesting is that opinions coming from Advocate Generals and decisions from the Court are consistently referring to the Community Charter of the Fundamental Social Rights. Point A provides that every worker of the European Community should have a right to a weekly rest period and to annual paid leave the duration of which must be progressively harmonised in accordance with National Practice. It is useful to look at the Judgment of 19th September 2013, Reexamen Commission –v- Strack C-579-12.