‘The Working Time Regulations 1998 are more effective in guaranteeing that workers get paid holidays than controlling excessive hours of work.’

Discuss.

• You should point out that the relevant Directive is a health and safety measure and that the common law duty of care implied into contracts of employment is always in the background. Note that the UK Regulations exclude certain sectors and activities.
• You should record that the case law has treated ‘on call’ hours as part of working time, that there is special protection for nightworkers and that reg 4 requires employers to take all reasonable steps to ensure that the hours limit is adhered to. You might refer to Landeshauptstadt Kiel v Jaeger [2003] on p 105 and R v Attorney General for Northern Ireland [1999] on p 106 .
• On the other hand, the hours worked are averaged over a reference period and reg 5 provides for an individual opt-out. You might refer to Pfeiffer v Deutsches Rotes Kruz [2005] on p 106. You might comment that workers may feel obliged to opt out in order to obtain or retain their jobs.
• You should state that the limit on hours is enforced by the HSE, which does not have many inspectors.
• In relation to holidays, you should point out that the minimum annual leave entitlement cannot be replaced by payments in lieu except when the employment is terminated. You should note that, in practice, the employer can stipulate when holidays are to be taken but, in principle, payments should be made at that time rather than throughout the year.
• You should point out that the Directive precludes national provisions and collective agreements that prevent workers who are sick during annual leave from taking that leave after recovery. You might refer to Pereda v Madrid Movilidad SA [2009] on p 108.
• You should observe that workers can enforce their holiday rights at an employment tribunal and that there is protection against victimisation for exercising rights under the Regulations.
• You might conclude that it is more difficult to enforce the limit on working hours than to provide workers with a right to paid holidays.
• For more examination material you should read Questions and Answers Employment Law 2018 and 2015 by Roseanne Russell , published by Oxford University Press.