Is an 84 Hour Working Week Unlawful?
'No', says a European Court - but only where the work involves the need for continuity of services.
The Court of Justice of the European Free Trade Association States (EFTA Court) has held that a charitable foundation in Norway which provided residential care did not contravene the European Working Time Directive (EWTD) by imposing an 84 hour week on its workers.
Legal Background
Amongst other things, the EWTD sets minimum requirements for workers' daily and weekly rest periods and maximum working hours. The EWTD also gives employers the opportunity to ask employees to agree to working more than the limit of 48 hours per week.
Facts
In this case, the employer is a charitable foundation that offers treatment for young people with drug and/or alcohol problems. It provides residential care for its patients, requiring therapists to sleep in apartments on the premises.
The Foundation proposed a change to working hours requiring workers to work a '7-7 rotation' where they would work for seven days and then have a rest period of seven days. During working days, the workers would be required to work from 7am to 11pm with a two hour break , and were required to make themselves available during the night if needed by a patient. This meant that the workers would be required to work for a total of 84 hours per week.
Some of the workers challenged this change and issued proceedings. The Norwegian Court of Appeal referred the case to the EFTA Court for interpretation of the EWTD.
EFTA's Decision
The Court confirmed that the 84 hour working week in a residential care arrangement was compatible with the EWTD as long as the worker explicitly and freely agreed to it.
The workers argued that, when added together, the minimum rest breaks required under the EWTD come to 90 hours per week. When this figure is subtracted from the total amount of hours in a week (168) this means that the maximum working week must be 78 hours, which was lower than the hours implemented by the Foundation.
The Court decided, however, that whilst the purpose of the EWTD is to lay down minimum health and safety requirements, the EWTD also recognises the need for flexibility in particular working circumstances, including where there is a special need for continuity.
There are provisions in the EWTD that allow derogation for the minimum rest break requirements if the activity undertaken by the worker involves a need for continuity of service or production. This is particularly relevant for organisations that provide care, such as hospitals or residential institutions.
The EFTA Court recognised that a key feature of cohabitant care is that it is beneficial for the patients to have the same therapists available for a longer period of time in order to resemble everyday family life.
Best Practice
The UK's Working Time Regulations 1998 implement the EWTD, and it is likely the reasoning in this case would be followed in the UK. The case provides useful guidance for the residential care sector, particularly those organisations where continuity of care is important, and shows the European Court's willingness to allow unusual working hours in this demanding sector.