Under the Working Time Council Directive 93/104/EC187 of 23rd November 1993 as amended by the Working Time Directive 2003/88/EC, 188 each Member States are obliged to ensure that workers are protected against adverse effects on their health and safety that can be caused by excessively long working hours, inadequate rest or disruptive working patterns.
184 See European Agency for Safety and Health at Work (2003), Gender issues in safety and health at work — A review, Luxembourg: Office for Official Publications of the European Communities, 2003
185 ILO – Occupational Safety and Health Convention, 1981 (No. 155), Convention concerning Occupational Safety and Health and the Working Environment, 67th ILC session (22 Jun 1981), Geneva: ILO
186 ILO – Office of the Legal Adviser, Legal Opinion of 29 July 2002 cited in ILO - Decent work for domestic workers, International Labour Conference, 99th Session, 2010, Report IV(1), Fourth item on the agenda, Geneva: International Labour Office, p.16
187 Official Journal L 307, 13.12.93, p. 18 – 24
188 Official Journal L 299, 18/11/2003 P. 0009 – 0019
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[T]he ILO Constitution and its first standard, the Hours of Work (Industry) Convention, 1919 (No. 1), identify 48 hours as the acceptable limit for a normal working week. During the Depression of the 1930s, a new international instrument on working hours was adopted, the Forty-Hour Week Convention, 1935 (No. 47), which introduced a limit ultimately adopted as the ILO’s vision of acceptable working hours.
These two international labour instruments dominated the legal landscape of the twentieth century, which witnessed a gradual reduction in standard working hours to a 40-hour week. 189
It is obvious from the above that the internationally acceptable working hours are a maximum of 48 hours per week. However, there are evidences to suggest most live-in domestic workers work in excess of 48 hours a week (Kalayaan, 2012, HRW, 2014). Although, within Article 17 of the Working Time Directive 2003/88/EC, Member States can derogate, in particular in the case of family workers. But, there is nothing within the directive that equates family workers to domestic servants. However, the UK law on working conditions, which purport to implement Directive 2003/88/EC excludes domestic workers from some of its provision. The UK Government own webpage190 has asserted that domestic workers in private households (e.g. Cleaner or au pair) are not entitled to rest breaks for health and safety reasons. No further explanation is provided as to why this is the case. It is also unclear whether the reference to ‘cleaners and au pair’ relates to domestic workers. More importantly, under Regulation 19 of the Working Time Regulation 1998 (as amended) (WTR 1998)191 domestic workers are explicitly excluded from the following rights:
(1) Regulation 4 – Maximum weekly working time: The provision that a worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days.
(2) Regulation 6 – Length of night work:
(i) The provision that night work shall not exceed an average of eight hours for each 24 hours.
(ii) The obligation on the employer to take all reasonable steps, in keeping with the need to protect the health and safety or workers
189 See ILO - Decent work for domestic workers, International Labour Conference, 99th Session, 2010, Report IV(1), Fourth item on the agenda, Geneva: International Labour Office, p.48
190 https://www.gov.uk/rest-breaks-work/types-of-break last accessed August 12, 2015
191 SI 1998 / 1833, London: OPSI
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(3) Regulation 7 – Health assessment and transfer of night workers to day work: The obligation on the employer not to assign the worker to work at night except where necessary and where adequate health and safety steps has been put in place
(4) Regulation 8 – Pattern of work: The obligation on the employer not to do anything that would put the health and safety of the worker at risk.
Meanwhile the legal effect of Reg. 19 has been tested in both national and international (EU) jurisprudence. In Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana,192 the CJEU granted a declaration stating that doctors working in primary health care fell within the scope of the Council Directive 93/104/EC even though they were excluded by the drafters within the Directive’ Article 1(3).
This principle was applied by the Court of Appeal in Gallagher v Alpha Catering Services Ltd (t/a Alpha Flight Services) 193 where it held that airline catering staff are entitled to rest break.
The majority of live-in domestic workers work on call and may not have a fixed period of rest break (Kalayaan, 2014). In Hughes v Corps of Commissionaires Management Ltd 194 the Claimant who was employed as a security guard brought an ET claim against his employer.
He averred that his breaks were often interrupted as he remained on call and as such, was not receiving rest breaks under Reg. 12 or compensatory rest under Reg. 24 (a) of the WTR 1998. The dismissal of his claim by the ET was upheld by both the EAT and the Court of Appeal. In the court view, there could be certain circumstances where an employer may not be able to give full rest break to employees, if the employer could offer an equivalent period of compensatory rest, which need not be a rest break as defined under Reg.24 (a), such rest break could defeat a claim under Reg. 24(b).195 The implication for domestic workers is that they may not be able to bring a successful claim against their employers if the emploers put them on call.
192 (C-303/98) [2001] All E.R. (EC) 609
193 [2004] EWCA Civ 1559
194 Hughes v Corps of Commissionaires Management Ltd [2011] I.R.L.R. 100 EAT
195 Hughes v Corps of Commissionaires Management Ltd [2011] EWCA Civ. 1061
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