Neutral Citation no. (1999) 1904

Ref:

KERE2782

 

 

 

Judgment: approved by the Court for handing down

Delivered:

15/03/99

(subject to editorial corrections)

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

----------

IN THE MATTER OF AN APPLICATION BY SHIRLEY BURNS FOR

JUDICIAL REVIEW

 

----------

 

KERR J

 

Introduction

 

By this application Shirley Burns, a former employee of AVX Ltd, Coleraine, County Londonderry, seeks various declarations, including that the United Kingdom government has been in breach of its obligation to transpose into domestic law the European Directive on the Organisation of Working Time. She also seeks damages for loss and damage which she claims to have suffered as a result of the failure of the government to enact legislation giving effect to the Directive.

Factual Background

Miss Burns began work as a production operative with AVX on 27 August 1979. She carried out testing of the insulation and resistance of electronic components. In November 1992 she was asked to change to a shift system which would involve some night work. At that time Miss Burns told her senior personnel officer she was unwilling to undertake this work because she felt it would affect her health. On 6 November 1992 AVX wrote to Miss Burns saying that they could no longer employ her on day shift only; they also gave her notice of the termination of her employment because of her refusal to accept the proposed change. After receiving this letter the applicant reluctantly accepted shift work.

From January 1993 until September 1995 the applicant worked a shift system which involved her working a night shift between 9.00 pm and 7.00 am one week in every three. From September 1995 she worked on cycles of fifteen shifts each of eight hours duration. During five of these, at least three hours of her working time fell between 11.00 pm and

6.00 am.

Miss Burns disliked working night shift. In January 1993 she lodged a complaint with an Industrial Tribunal alleging that she had been discriminated against because of the introduction of night shift work. She withdrew this complaint on legal advice in January 1994. In March and May 1993 she applied for day shift employment but was not successful. She lodged a further complaint with the Industrial Tribunal after the second refusal but again withdrew this on the advice of her solicitor in October 1994.

Throughout the period from 1994 until 1996 the applicant continued to apply for day shift posts whenever they were advertised by her employer. She was not successful in any of these applications. From early 1993 she attended her doctor regularly. She complained frequently of difficulties with night shift working. By September 1996 she felt that she could not continue this type of work any longer. On 20 September 1996 she obtained a note from her doctor which stated that she was under severe stress from night shift work. In the note her general practitioner, Dr Mitchell, also said that he supported Miss Burns in her decision to resign from her post. It appears that Miss Burns did not send this note to her employer.

In December 1996 Miss Burns informed her supervisor that night work was affecting her health. She had been on sick leave during October and November 1996 with symptoms of nausea, fatigue, stress and headaches. In February 1997 she had further periods off work. She submitted medical certificates for these absences which specified rhinitis as the reason for her incapacity.

On 7 February 1997 the applicant delivered a letter to her employer in which she stated that she wished to terminate her employment on medical advice. Her employer replied on 11 February 1997 confirming termination of her employment with effect from 7 February 1997. Before she received this letter the applicant wrote again to her employer purporting to withdraw her earlier resignation letter and asking that she be considered for "day work or double day shift", again citing health reasons. This prompted a meeting on 13 February 1997 with Mr William Jamieson, the senior personnel manager. The following day Mr Jamieson wrote to Miss Burns explaining that because of her stipulation that she work on day shift, she could no longer be employed by AVX. She has not worked since.

The applicant claims that her health has improved since her employment ended. She has suggested that she no longer suffers from the "blinding headaches" which she had experienced during the last two years of her employment and that she is not "troubled to any great extent" by rhinitis or sinus problems. She claims, however, to suffer from depression - a condition which had never previously afflicted her.

In a report of 29 September 1997 which he furnished to her solicitors, the applicant's general practitioner did not fully support these claims. He considered that "working twelve hour shifts did not suit her personality" but the predominant problem between November 1996 and February 1997 was rhinitis. The applicant, according to her general practitioner, also suffered headaches during that period and was concerned about "problems with her developing legal case". Moreover, between February and September 1997 her many attendances on her doctor were mostly related to her "ongoing" rhinitis problem. Her general practitioner believed that she had a "mild anxiety/depression, probably resulting from the whole situation regarding her employment". He considered that it was difficult, however, to distinguish specific health problems which were related to her employment from "her underlying trend of dependency on general practitioner care".

The judicial review challenge

By the amended Order 53 statement the applicant sought:-

(i) a declaration that the United Kingdom was in breach of its obligations under the European Directive on the Organisation of Working Time (Council Directive 93/104/EC) whereby each member state was required to adopt the laws, regulations and administrative procedures necessary to implement the Directive by 23 November 1996.

(ii) a declaration that the applicant be deemed a worker within the terms of the Directive notwithstanding the termination of her employment on 7 February 1997.

(iii) a declaration that the applicant be deemed a `night worker' within the terms of the Directive.

(iv) a declaration that the United Kingdom's breach of European law in failing to transpose the Directive into domestic law is sufficiently serious to give rise to liability for any damage suffered by the applicant.

(v) a declaration that the applicant is entitled to exemplary damages.

The applicant also sought an order of mandamus to compel the United Kingdom to take such steps as were necessary to transpose the Directive into domestic law; on becoming aware that this was imminent, however, the applicant abandoned that claim. She maintained her claim for compensation and exemplary damages.

Council Directive 93/104/EC

The Directive lays down minimum safety and health requirements for the organisation of working times and makes provision for periods of daily rest, maximum weekly working time etc. It also makes provision for certain aspects of night work, shift work and patterns of work. Article 2(3) defines night time as:-

" Any period of not less than seven hours, as defined by national law and which must include in any case the period between midnight and 5.00 am."

Night worker is defined in Article 2(4) as:-

"(a) On the one hand, any worker, who, during night time, works at least three hours of his daily working time as a normal course and

 

(b) On the other hand, any worker who is likely during night time to work a certain proportion of his annual working time as defined at the choice of the member state concerned:

 

(i) by national legislation, following consultation with the two sides of industry; or

 

(ii) by collective agreements or agreements concluded between the two sides of industry at national or regional level."

 

Article 8(1) requires member states to take measures to ensure that normal hours of work for night workers do not exceed an average of eight hours in any twenty four hour period. Article 9 provides that member states should take measures to ensure that night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals. Member states must also ensure that night workers who suffer from health problems connected with the fact that they perform night work are transferred whenever possible to day work to which they are suited.

Article 13 deals with patterns of work. It provides:-

"Member states shall take the measures necessary to ensure that an employer who intends to organize work according to a certain pattern takes account of the general principle of adapting work to the worker with a view, in particular, to alleviating monotonous work and work at a predetermined workrate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time."

 

Failure to transpose the Directive

 

The Directive was adopted by the Council of Ministers on 23 November 1997. Article 18(1)(a) required member states to adopt the measures necessary to implement it by 23 November 1996.

On 8 March 1994 the United Kingdom applied to the European Court of Justice requesting that the Directive be annulled in whole or in part. An oral hearing of that application took place on 16 January 1996. Advocate General Leger gave his opinion on 12 March 1996 and ECJ gave judgment on 12 November 1996. The second sentence of Article 5 was annulled but the application was otherwise dismissed. In December 1996 the government circulated consultative documents and sought representations by 6 March 1997. Thereafter proposals for the implementation of the Directive were developed and the regulations transposing the Working Time Directive into the law of Great Britain came into force on 1 October 1998. Equivalent regulations transposing the Directive into the law of Northern Ireland are awaited.

The parties' contentions

The applicant claims that, in view of the government's failure to implement the Directive, she was deprived of the opportunity to be transferred to day work and that she thereby lost her employment.

The respondent argues that the applicant was not a night worker within the meaning of the Directive; alternatively, an earlier implementation of the Directive would not have conferred any effective right on her. It is further argued by the respondent that there is no causal nexus between the failure to implement the Directive and the loss of the applicant's employment; finally the respondent submits that the failure to transpose the Directive into domestic law does not constitute an actionable breach of Community law.

The night worker issue

During the period from 23 November 1996 (the date by which the Directive should have been implemented) and 7 February 1997, when she resigned from her employment, the applicant spent one week of each three week cycle working from 9.00 pm to 7.00 am, Sunday to Friday.

It was submitted by the respondent that this period of night shift work was insufficient to qualify the applicant as a night worker. The respondent argued that the use of the expressions, "daily working time" and "as a normal course" in Article 2(4)(a) indicated that, for the purposes of the Directive, a "night worker" was a person who worked night shift only. Alternatively, the respondent suggested, a "night worker" was a person who worked night shifts predominantly. It was submitted that the proportion of the applicant's night work was so small that she did not qualify for protection under the Directive.

I do not accept these arguments. The requirement that a night worker should be one who works at least three hours during night time "as a normal course" involves no more, in my opinion, than that this should be a regular feature of her employment. The Directive contemplates that a night worker may be someone who works as little as three hours during night time. It is inconceivable, therefore, that the definition of night worker should be confined to someone who works night shifts exclusively or even predominantly. Moreover Article 2(4)(b) explicitly recognises that a night worker should include those who work only a proportion of their time during the night.

I consider, therefore, that the applicant would have been deemed a night worker had the Directive been transposed into domestic law during the time that she was employed.

Does the failure to transpose the Directive constitute an actionable breach?

It was argued by the Respondent that the applicant had failed to establish that the failure of the government to transpose the Directive into domestic law constituted an actionable breach of Community law. For the failure to transpose to constitute such a breach it had to be shown that the failure was sufficiently serious. In this context, "sufficiently serious" connoted a manifest and grave disregard for the limits on the discretion of the Member state -R v Secretary of State for Transport ex parte Factortame and others (1996) All ER (EC) 301.

The applicant relied on the decision in Dillenkofer & others v Germany (1996) All ER 917. It was submitted that this established that the failure to transpose a Directive in order to achieve the result it prescribes is per se a serious breach of Community law.

In Factortame the Court of Justice, at paragraph 57 of its judgment, said,

"57. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case law of the court on the matter from which it is clear that the conduct in question constituted an infringement."

The respondent relied on this passage to justify the approach of the government in the instant case. It was suggested that the UK cannot be faulted for taking a legitimate challenge to the validity of the Directive, particularly when that challenge was partly successful.

It appears to me, however, that the Court of Justice, in this judgment, was not seeking to propound a rule that a member state was immune from suit for a breach of the requirement to transpose a directive into domestic law unless it could be shown that it had acted in egregious defiance of the direction that the directive be implemented by the appropriate domestic law enactment. In Dillenkofer the Court dealt with this question in an unambiguous fashion. It said, at paragraph 29 of its judgment:-

" failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury if the result prescribed by the directive entails the grant to individuals of rights whose content is identifiable and a causal link exists between the breach of the state's obligation and the loss and damage suffered."

I consider that this passage is clear in its effect. If a member state does not transpose a directive within the proscribed period, it is in automatic and serious breach of Community law and, therefore, liable for an injury suffered by an individual who suffers loss and damage in consequence.

Has the applicant suffered loss as a consequence of the failure to transpose the Directive?

The applicant claims that, if she had been able to have recourse to domestic legislation which enshrined the rights provided for in the Directive, she would have been able to require her employer to transfer her to day work and that she would thereby have been able to maintain her employment.

I am not persuaded, on the evidence currently available, that the applicant could have secured this objective. The medical evidence in relation to her avowed inability to undertake night work is far from unequivocal. Moreover, the capacity of her employer to relocate her in day work would have to be examined before one could say that she would have been sure of a transfer to that form of work.

Conclusions

The applicant is entitled to the declarations sought in (i) to (iv) of the outline to the judicial review claim above. I am not satisfied, however, for the reasons earlier given, that she is entitled to damages for the loss of her employment. It appears to me, however, that, on production of the necessary evidence to establish that she would have been reassigned as a day worker had the Directive been in force in domestic law she may well be entitled to recover compensation for the loss of her employment.


KERE2782

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

 

----------

 

IN THE MATTER OF AN APPLICATION BY SHIRLEY BURNS FOR

JUDICIAL REVIEW

 

----------

 

JUDGMENT

 

 

OF

 

 

KERR J

 

----------