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More recent cases on the Transfer of Undertakings (Protection of Employment) Regulations 1981: 2 TUPE loops the loop
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Regulation 18 of the Working Time Regulations excludes various sectors from the scope of the Regulations altogether. These sectors include air, rail, road, sea, inland waterway and lake transport, work at sea, doctors in training and 'where characteristics peculiar to certain specific services such as the armed forces or the police, or to certain specific activities in the civil protection services, inevitably conflict with the provisions of the Regulations'.
It has always been a vexed question as to whether or not Regulation 18 applies a blanket exclusion to all workers in these sectors or whether the sectors could be divided up so that, for example, clerical and auxiliary workers in the sector would not be excluded.
The Employment Appeal Tribunal had to address precisely this question in the context of the road transport sector exclusion in Bowden v Tuffnells Parcels Express Limited, EAT 6/4/2000. Ms Bowden and her colleagues worked in clerical jobs in the office of a parcel delivery firm. The van drivers were not allowed in the office and Bowden and her office colleagues did not, and could not under their contracts, work with any transport. The Employment Tribunal held that as Bowden and the office workers were engaged in the road transport sector, they could not rely on the Working Time Regulations and claim paid holidays. Bowden and her colleagues appealed to the EAT.
The EAT tried to construe Regulation 18 in accordance with the EU Working Time Directive. However, the Directive gave no assistance as to the interpretation of 'sector of activity'.
The EAT was reluctant to adopt a literal construction so as to exclude all workers engaged in road transport. The EAT failed to understand why a clerical worker in, for example, a solicitor's firm, should get paid holidays under the Regulations but a clerical officer in a shipping office would not.
But the EAT also took into account a number of the European Community papers post-dating the Working Time Regulations. For example, in November 1998, the European Commission proposed a Council Directive to amend the Working Time Directive, noting that the Directive 'should be applied to non-mobile workers in the sectors and activities currently excluded'. From this and other European sources, the EAT inferred that, in the opinion of the Community bodies, non-mobile workers in the road transport sector probably were still excluded from the benefit of the Working Time Directive and a formal amendment was required before the Directive would cover them. The EAT was not prepared to adopt a literal interpretation of the legislation and arrive at a conclusion that was 'devoid of any supporting economic, social, political or common sense terms'.
So, the EAT decided to refer two main questions to the European Court of Justice. Are all workers employed in the road transport sector of activity necessarily excluded from the Working Time Directive? If not, what test should the national court apply to determine who is covered, and who is not? The answers to these questions should apply not only to road transport, but also to the other sectors excluded by Regulation 18.