Background
Mr Maio Marques da Rosa was employed as a casino operative from 1991 to 2014 in Portugal. The casino was open seven days a week. Mr da Rosa’s worker’s agreement stated that he was entitled to two days’ consecutive weekly rest. However, in 2008 to 2009, due to a revolving shift pattern, Mr da Rosa was required to work for seven consecutive days on occasion by his employer, Varzim Sol.
From 2010 Mr da Rosa’s employer changed the shift pattern so that employees were never expected to work more than six consecutive days without a weekly rest period.
After Mr da Rosa’s employment terminated, he brought claims against his employer because he believed he had been denied his weekly rest period entitlement.
At first instance the claim was dismissed and Mr da Rosa appealed. A number of questions were then referred to the European Court of Justice (“ECJ”). In particular, the Portuguese Court of Appeal asked the ECJ whether the Working Time Directive should be interpreted to mean that the weekly rest period must be granted at the latest on the seventh day following six consecutive working days, or whether the employer has discretion, in relation to each seven-day period, when to grant the weekly rest period.
Decision
The ECJ confirmed in this case of Marques da Rosa v Varzim Sol – Turismo, Jogo e Animacao SA that the Working Time Directive should not be interpreted as requiring a weekly rest period to be taken on the seventh day following six consecutive working days, but rather as requiring a weekly rest period to be granted at some point during each seven-day period. Therefore, a worker could work up to 12 consecutive days (if the weekly rest periods were granted on the first day of the first seven-day period and the last day of the following seven-day period).
Comment
This case potentially gives employers greater flexibility when determining shift patterns. It may also have implications for right to fortnightly rest periods. Broadly, workers are entitled to 2 days’ rest every fortnight. This decision could mean a worker in the UK, who does not fall into any special categories under the Working Time Regulations 1998, could be obliged to work for 24 consecutive days with rest periods either side, provided that this does not breach their employment contract or any collective agreement.
However, given one of the main objectives of the Working Time Directive is to protect health and safety, it is possible that if a case on this issue were to be brought a different decision may be reached and therefore employer should take care before relying on this decision in relation to fortnightly rest periods.
Kerry Garcia