The United Road Transport Union, R (on the application of) v Secretary of State for Transport [2013] EWCA Civ 962

Case No C1/2012/2241[2013] EWCA Civ 962
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue ADMINISTRATIVE COURT IN MANCHESTER
HICKINBOTTOM J
CO/1809/2011
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 29 th July 2013
Before
LORD JUSTICE JACKSONLORD JUSTICE ELIASLORD JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OFAppellant/THE UNITED ROAD TRANSPORT UNIONClaimantTHE SECRETARY OF STATE FOR TRANSPORTRespondent/Defendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
JOHN HENDY QC and PHILIP MEAD (instructed by Slater & Gordon (UK) LLP) for Appellant.TIM EICKE QC (instructed by Treasury Solicitors) for Respondent.
JudgmentLord Justice Davis :Introduction
[1]This is an appeal from a reserved judgment of Hickinbottom J, sitting in the Administrative Court in Manchester, dated 13 July 2012. By it he dismissed the application of the claimant, the United Road Transport Union, for judicial review, permission having previously been granted by Owen J. Permission to appeal was refused by the judge and by Sir Richard Buxton on the papers; but was granted, after an oral hearing, by Laws LJ on 1 March 2013.[2]By the proceedings the claimant had sought to challenge decisions of the defendant, the Secretary of State for Transport, to refuse to accede to the claimant’s request that there be introduced secondary legislation having the effect of providing for commercial road transport workers a civil remedy (in particular in the form of access to an employment tribunal) if they were required to work in contravention of regulations providing for breaks and rest periods, in line with the access to a tribunal which is available for the generality of other workers in a comparable situation. What is said is that the refusal to introduce any such secondary legislation in respect of commercial road transport workers breaches either the principle of equivalence; or the principle of effectiveness; or both.[3]The judge would have none of it. In a careful and thorough judgment he rejected the application on all grounds advanced ([2012] EWHC 1909 (Admin)).[4]On this appeal the appellant Union was represented by Mr John Hendy QC with Mr Philip Mead (both of whom appeared below). The respondent Secretary of State was represented by Mr Tim Eicke QC (who also appeared below).

Working time legislation

[5]To make any sense of the nature of the proceedings and the issues raised, it is necessary to go straightaway to the background legislative regime and other relevant materials.[6]These are fully set out in the judgment below: and Mr Hendy also in argument helpfully guided us through the salient aspects. An exhaustive summary is not here called for.[7]Mr Hendy took as his starting point Article 288 of the Treaty on the Functioning of the European Union to the effect that a European Regulation is to have general application, be binding and be directly applicable in all Member States. He went on to refer to Articles 31, 47, 51 and 52 of the Charter of Fundamental Rights of the European Union (which by Article 6 of the Treaty of Lisbon has legal effect). In particular, Article 31 provides that every worker has the right to working conditions which respect his health, safety and dignity; and to limitation of maximum working hours, rest periods and annual leave. Article 47 provides, among other things, that:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in accordance with the conditions laid down in this Article…”
[8]We were then taken to the Consolidated General Working Time Directive 2003/88/EC. The purpose and scope of the Directive, as stated in Article 1, was to “lay down minimum safety and health requirements for the organisation of working time”.[9]Thus by Article 3 it was stipulated that Member States take the necessary measures to ensure that every worker “is entitled” to a minimum daily rest period. Article 4 relates to breaks; Article 5 to weekly rest periods; Article 7 to annual leave. Each is drafted by reference to what a worker is said to be “entitled”. Article 8 relates to night work; and so on.[10]Article 14 states that the Directive does not apply where other community instruments contained more specific requirements relating to the organisation of working time for certain occupations. Article 20 states, subject to proviso, that Articles 3, 4, 5 and 8 should not apply to mobile workers (as defined).[11]No enforcement mechanism is set out in the Directive, as the judge noted. That is therefore left to Member States.[12]This Consolidated General Working Time Directive had, in its previous versions, been implemented in the UK by the Working Time Regulations 1998, as amended (“the 1998 Regulations”). It was not suggested that the 1998 Regulations do not properly transpose the requirements of the Directive. But, consistently with the Directive, the 1998 Regulations do not apply, in the stated respects, to mobile workers: see Regulation 18(4).[13]The scheme of enforcement provided by the 1998 Regulations is, nevertheless, to be noted (see in particular Regulations 28 to 30). Put shortly, failure to comply with the 1998 Regulations by an employer is a criminal offence. Further, there is statutory supervision and enforcement by the relevant Executive: which, with regard to relevant road transport workers, is the Vehicle and Operator Services Agency (“VOSA”) which is empowered and required to enforce the relevant requirement in relation to relevant road transport users: Regulation 28(6). Moreover, by Regulation 30, it is specifically provided that a worker “may present a complaint to an employment tribunal” on the footing that his employer “has refused to permit him to exercise his rights” under the relevant specified Regulations. If that is established, the tribunal is required, by Regulation 30(3), to make a declaration to that effect and may make an award of compensation. In addition, an employee is, under Regulation 32, to be regarded as unfairly dismissed if dismissed by reason of refusal to comply with a requirement of an employer in contravention of the 1998 Regulations.[14]Thus far, however, the position of mobile workers is not specifically covered.[15]This is addressed elsewhere. For example, Directive 2005/47/EEC, implemented by the Cross-border Railway Services (Working Time) Regulations 2008, relate to cross-border railway workers. But for present purposes the relevant starting point is Directive 2002/15/EC (“the Road Transport Working Time Directive”) taken with Regulation (EC) No. 561/2006 (before us styled “the Drivers’ Hours Regulation”).[16]The Road Transport Working Time Directive in its recitals records past inability to reach agreement, in spite of “intensive negotiations”, on how the position of mobile workers was to be addressed and that “more specific” provisions were necessary “to ensure the safety of transport and the health and safety of the persons involved” (recitals (3) and (4)). Recital (10) provides as follows:
“(10) In order to improve road safety, prevent the distortion of competition and guarantee the safety and health of the mobile workers covered by this Directive, the latter should know exactly which periods devoted to road transport activities constitute working time and which do not and are thus deemed to be break times, rest times or periods of availability. These workers should be granted minimum daily and weekly periods of rest, and adequate breaks. It is also necessary to place a maximum limit on the number of weekly working hours.”
[17]As Mr Hendy pointed out, three purposes are there identified in that recital: road safety, prevention of distortion of competition and safety and health of the mobile workers. This is similarly reflected in the provisions of Article 1 as to the purpose of the Directive. Article 2 states that the Directive applies to employed mobile workers (as thereafter defined) of the relevant category. There are then provisions requiring Member States to “take the measures necessary to ensure” maximum weekly working time, breaks, rest periods and night work a there prescribed. Article 11 of the Directive provides as follows:
“Article 11 Penalties Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied. The penalties thus provided for shall be effective, proportional and dissuasive.”
Accordingly it is left to Member States to lay down such a system of penalties.

Penalties

[18]Turning to the Drivers’ Hours Regulation, that too contains extensive recitals. Recital (1) identifies competition as one of its purposes, along with improved working conditions and road safety. Recital (17) is to broadly similar effect. Recital (27) provides as follows:
“(27) It is desirable in the interests of clear and effective enforcement to ensure uniform provisions on the liability of transport undertakings and drivers for infringements of this Regulation. This liability may result in penal, civil or administrative penalties as may be the case in the Member States.”
Article 1 then provides:
“This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and safety. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry.”
[19]Chapter II of the Drivers’ Hours Regulation contains mandatory stipulations as to crews, driving times, breaks and daily and weekly rest periods. The obligations in this regard, it is to be noted, are placed on “the driver”. So far as employer transport undertakings themselves are concerned, the relevant provision is Article 10 (contained in Chapter III) which in the relevant respects provides as follows:
“Article 10 1. A transport undertaking shall not give drivers it employs or who are put at its disposal any payment, even in the form of a bonus or wage supplement, related to distances travelled and/or the amount of goods carried if that payment is of such a kind as to endanger road safety and/or encourages infringement of this Regulation. 2. A transport undertaking shall organise the work of drivers referred to in paragraph 1 in such a way that the drivers are able to comply with Regulation (EEC) No 3821/85 and Chapter II of this Regulation. The transport undertaking shall properly instruct the driver and shall make regular checks to ensure that Regulation (EEC) No 3821/85 and Chapter II of this Regulation are complied with. 3. A transport undertaking shall be liable for infringements committed by drivers of the undertaking, even if the infringement was committed on the territory of another Member State or a third country…”
[20]Article 15 of the Drivers’ Hours Regulation, contained in Chapter IV, then provides that Member States shall ensure that drivers of relevant vehicles (as identified in Article 3(a)):
“…are governed by national rules which provide adequate protection in terms of permitted driving times and mandatory breaks and rest periods”
. Chapter V relates to control procedures and directions. Thus Article 16 requires the transport undertaking to draw up timetables and rosters, providing details for each driver for his schedule, including matters such as work breaks. Articles 18 and 19 provide as follows:
“Article 18 Member States shall adopt such measures as may be necessary for the implementation of this Regulation. Article 19 1. Member States shall lay down rules on penalties applicable to infringements of this Regulation and Regulation (EEC) No 3821/85 and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive and non-discriminatory. No infringement of this Regulation and Regulation (EEC) No 3821/85 shall be subjected to more than one penalty or procedure. The Member States shall notify the Commission of these measures and the rules on penalties by the date specified in the second subparagraph of Article 29. The Commission shall inform Member States accordingly.”
So the Drivers’ Hours Regulation, as does the Road Transport Working Time Directive, leaves it to Member States to provide for rules on penalties: such penalties being expressly required to be (among other things) “effective”. Thus, while the Drivers’ Hours Regulation is capable of direct enforcement, when it comes to penalties it was deliberately left to Member States to adopt their own “measures of application” in this particular respect: see, for example, Azienda Agricola Monte Arcuso [2001] ECR 1-121 at paragraphs 26 to 29.

Article 19

[21]That then leads to the Road Transport (Working Time) Regulations 2005 (“the 2005 Regulations”) applicable in Great Britain. They extend, among other things, to mobile workers, as defined. Obligations with regard to working time, breaks and night work are imposed. Regulation 8 provides (with regard to rest periods) as follows:
“8.—(1) In the application of these Regulations, the provisions of the Community Drivers’ Hours Regulation relating to daily and weekly rest shall apply to all mobile workers to whom they do not apply under that Regulation as they apply to other mobile workers under that Regulation. (2) An employer shall take all reasonable steps, in keeping with the need to protect the Health and Safety of the mobile worker, to ensure that those provisions are complied with in the case of each mobile worker employed by him, to whom they are applied by paragraph (1).”
Regulation 10 – consistently with Article 10 of the Drivers’ Hours Regulation – requires employers to notify employed mobile workers of the provisions of the 2005 Regulations. Regulation 15 extends the reach of the 2005 Regulations to individuals carrying on a trade or business (since amended by further Regulations in 2007). As to enforcement, Regulation 16 and Regulation 17(1) provide as follows:
“16. —(1) It shall be the duty of the Secretary of State to enforce the requirements of these Regulations. (2) Schedule 2 shall apply in relation to the enforcement of the relevant requirements. 17. —(1) Any person who fails to comply with any of the relevant requirements shall be guilty of an offence…”
Schedule 2 contains detailed enforcement provisions, including the appointment of inspectors with extensive powers, including power to issue improvement and prohibition notices. There is provision in paragraph 6 of Schedule 2 for challenge to such a notice by way of appeal to the employment tribunal. Regulation 17(3) contains provisions making it an offence to fail to comply with a requirement of an inspector, or otherwise, in wide terms. Inspectors are empowered, by Regulation 20, to institute proceedings for an offence.[22]It should be noted that the 2005 Regulations have, with effect from 11 May 2012, been made applicable, with some variations, to self-employed drivers: see the Road Transport (Working Time)(Amendment) Regulations 2012.[23]It was common ground before us that a driver of the relevant category of vehicle thus is open to prosecution under Regulation 17(1): prosecution being in the ordinary way entrusted to VOSA.

Background facts

[24]That summary review of the legislative framework foreshadows the issues arising. It is evident that the regime applicable to mobile workers differs in some significant ways from that applicable to other workers. In particular obligations are imposed on the drivers themselves (and not simply on employers): the drivers may themselves be liable to criminal prosecution. Nor is any right expressly conferred on an employed mobile worker to, for example, take his employer to a tribunal if required to work in contravention of the 2005 Regulations. The only sanction provided is enforcement by VOSA, in particular by way of notices and/or prosecution. By contrast, other workers may, by Regulation 30 of the 1998 Regulations, take proceedings in analagous circumstances in the employment tribunal.[25]The claimant Union entered into negotiations with successive governments with a view to redressing the position on behalf of mobile workers. It represents some 13,500 members employed in the road transport industry, mostly as drivers of commercial vehicles. We were told that the previous government had been receptive in principle to implementing further secondary legislation to make the position correspond more closely in this regard to the rights of other workers, by way of giving mobile workers access to a tribunal if workers were required to work in contravention of relevant Regulations.[26]The position of the present government differed. It is explained by the terms of the two decision letters dated 1 October 2010 and 26 November 2010 from the Parliamentary Under Secretary of State. The first letter reads as follows:
“1 October 2010 Thank you for your letter dated 20 September about providing mobile workers covered by the Road Transport (Working Time) Regulations 2005 with an avenue of appeal in the employment tribunals in relation to working time matters. Earlier in the year letters were sent by the previous government. These indicated that previous ministers were minded (subject to consultation) to amend legislation to provide for this. After consideration, I have decided not to proceed with amending the relevant legislation in this way. This is because we now take the view that mobile workers are already able to enforce such rights under the provisions in the Employment Rights Act that deal with protected disclosures. This also accords with the priority of the Coalition Government to minimise new regulation. A letter informing the Parliamentary Trade Union Co-ordinating Group Convenor of the decision was sent on 22 September. Officials also had the opportunity to inform URTU representatives of this issue at a meeting on 23 September.”
The letter dated 26 November 2010 reads as follows:
“Thank you for your letter of 9 November, following our meeting on 13 October, regarding my decision not to amend legislation to provide mobile road transport workers with a specific avenue of appeal in employment tribunals in relation to working time matters. In your letter you raised a particular concern that the Road Transport (Working Time) Regulations 2005 do not contain an equivalent to regulation 30 of the Working Time Regulations 1998. I have given this careful consideration and explain below why I remain of the view that amending legislation is not required. Please can I remind you that the Department for Transport does not provide legal advice and this should not be taken such; independent legal advice should be sought if required, and ultimately it is for the courts to interpret the law. The Working Time Regulations 1998 (“the 1998 Regulations”) implement a particular EU Directive. Regulation 30 of the 1998 Regulations simply allows for compensation to be awarded by an employment tribunal in the event of a complaint with respect to breach of rest, rest breaks or annual leave entitlement being upheld. The Road Transport (Working Time) Regulations 2005 (“the 2005 Regulations”) implement a different EU Directive – namely Council Directive 2002/15/EC. There is no specific requirement in this Directive for mobile workers to be paid compensation in the event of there being a breach of rest, rest breaks or annual leave entitlement, and there is no reason why the 2005 Regulations should include exactly the same provisions as the 1998 Regulations. Directive 2002/15/EC requires breaches of national provisions adopted pursuant to the Directive to be “effective, proportional and dissuasive”
. The Department considers that this has been given effect by providing enforcement powers to the Vehicle and Operators Services Agency (VOSA). As I previously explained, the Department considers that mobile workers are able to uphold the rights afforded to them under Directive 2202/15/EC – in employment tribunals if necessary. In keeping with this the Department takes the view that mobile workers who assert their rights to rest, breaks or annual leave could ultimately rely on the protected disclosure provisions in the Employment Rights Act 1996, in the event of being dismissed or suffering some other detriment for asserting those rights. I hope that this letter addresses your concern. Having explained further the reason for my decision not to make amending legislation, which accords with the priority of the government to minimise new regulation, I do not think a specific meeting on this subject would serve much purpose. I will shortly be writing to you with details of the first protected meeting of the Road Haulage Forum; I look forward to meeting you again there.” Reference to the “protected disclosure provisions” is to be taken as a reference to what are commonly known as the “whistle-blowing” provisions in the employment legislation. “Thank you for your letter of 9 November, following our meeting on 13 October, regarding my decision not to amend legislation to provide mobile road transport workers with a specific avenue of appeal in employment tribunals in relation to working time matters. In your letter you raised a particular concern that the Road Transport (Working Time) Regulations 2005 do not contain an equivalent to regulation 30 of the Working Time Regulations 1998. I have given this careful consideration and explain below why I remain of the view that amending legislation is not required. Please can I remind you that the Department for Transport does not provide legal advice and this should not be taken such; independent legal advice should be sought if required, and ultimately it is for the courts to interpret the law. The Working Time Regulations 1998 (“the 1998 Regulations”) implement a particular EU Directive. Regulation 30 of the 1998 Regulations simply allows for compensation to be awarded by an employment tribunal in the event of a complaint with respect to breach of rest, rest breaks or annual leave entitlement being upheld. The Road Transport (Working Time) Regulations 2005 (“the 2005 Regulations”) implement a different EU Directive – namely Council Directive 2002/15/EC. There is no specific requirement in this Directive for mobile workers to be paid compensation in the event of there being a breach of rest, rest breaks or annual leave entitlement, and there is no reason why the 2005 Regulations should include exactly the same provisions as the 1998 Regulations. Directive 2002/15/EC requires breaches of national provisions adopted pursuant to the Directive to be “effective, proportional and dissuasive”. The Department considers that this has been given effect by providing enforcement powers to the Vehicle and Operators Services Agency (VOSA). As I previously explained, the Department considers that mobile workers are able to uphold the rights afforded to them under Directive 2202/15/EC – in employment tribunals if necessary. In keeping with this the Department takes the view that mobile workers who assert their rights to rest, breaks or annual leave could ultimately rely on the protected disclosure provisions in the Employment Rights Act 1996, in the event of being dismissed or suffering some other detriment for asserting those rights. I hope that this letter addresses your concern. Having explained further the reason for my decision not to make amending legislation, which accords with the priority of the government to minimise new regulation, I do not think a specific meeting on this subject would serve much purpose. I will shortly be writing to you with details of the first protected meeting of the Road Haulage Forum; I look forward to meeting you again there.”[27]The claim form seeking judicial review of these decisions was issued on 5 February 2011. It is regrettable that the proceedings took a considerable time before coming on for hearing.

The grounds advanced

[28]The submissions advanced before us in substance replicate the submissions advanced to the judge below. They rest on two well established principles. i) The first is the principle of equivalence. This is to the effect that where Member States are required to introduce regulations designed to ensure the protection of rights which individuals acquire through the direct effect of Community law such regulations must not be less favourable than those governing similar domestic actions. ii) The second principle is the principle of effectiveness. This is to the effect that, in such circumstances, the regulations must not be framed in such a way as to render impossible in practice the exercise of rights conferred by community law. See, for example, the judgment of the European Court in Preston v Wolverhampton Healthcare NHS Trust [2001] 2 AC 415 at para 31. There were cited to us various other authorities providing formulations of these principles, but I think the above reflects the essential nature of them.[29]The argument, in a nutshell, of the claimant was that the 2005 Regulations infringed the principle of equivalence in that they provided no access to an employment tribunal where a mobile worker was required to work in breach of the Regulations, whereas such access was provided, for other workers, under Regulations 30-32 of the 1998 Regulations. It was further said that the 2005 Regulations infringed the principle of effectiveness in that the lack of access to an employment tribunal at the behest of an employed mobile worker, where required to act in breach of the Regulations, meant that in practice it was impossible for such a worker to exercise his rights.

The judgment of Hickinbottom J

The judge rejected these arguments.

[31]On the principle of equivalence, he held that it had no application at all. He considered that such principle required comparing and contrasting an action based on European union law and an action based on domestic law (citing Oyarce v Cheshire County Council [2008] 1CR 1179, [2008] EWCA Civ 434 for this purpose). But that could not apply here because the relevant rights derived on the one hand from the General Working Time Directive and on the other hand from the Road Transport Working Time Directive (perhaps coupled with the Drivers’ Hours Regulation). Thus the comparison was between two asserted rights both derived from European law: and he concluded that the principle of equivalence thus had no purchase or application.

The judge said this in conclusion on the point in paragraph 73 of his judgment:

“73. In any event, the submission again fails to take into account the relevant focus, which is on the rights and from where they derive. However enforced, any rights here all derive from European law. As I have indicated above, there is no basis in principle or case law for allowing the principle of equivalence to be applied to domestic remedies implementing different European obligations, even where those obligations are sufficiently similar in respect of their purpose and essential characteristics.”
[32]The judge turned to the issue of effectiveness, stating the view that “this issue is more difficult than that of equivalence”.[33]His essential reasons were contained in paragraph 84 of his judgment in the following terms:
“84. Generally, I have some sympathy with those submissions. However, I am unpersuaded by them, for the following reasons. i) Mr Hendy submitted that both the Road Transport Regulation and the Road Transport Working Time Directive required other relevant remedies, over and above the envisaged system of penalties. However, that is not so: the Regulation and Directive certainly allow such additional remedies, but none of their language requires more than the mandatory system of penalties. Indeed, that language suggests that a system of penalties may well be sufficient. For example, both require a system of penalties that is “effective” (article 19 of the Road Transport Regulation, and article 11 of the Road Transport Working Time Directive); and no infringement of the Regulation can be subject to “more than one penalty or procedure” (article 19 of the Regulation). That language may not be determinative; but it is strongly suggestive that the envisaged system of penalties might be sufficient to be effective. It is certainly not language that requires remedies additional to that system. ii) For the reasons given above, I do not consider that the Road Transport Regulation gives rights to mobile transport workers, such as drivers. Rather, it imposes obligations upon them. The Road Transport Regulations, upon which the Union relies, are not made pursuant to the Regulation, but purportedly made to implement the Road Transport Working Time Directive. iii) It is a more difficult question as to whether that Directive gives rights to mobile workers. Whilst article 31 of the Charter of Fundamental Rights which puts the limitation on working hours etc for all workers firmly on the basis of a worker’s right, and article 20 of the General Working Time Directive requires Member States to take measures to ensure that such mobile workers are entitled to adequate rest as of right, as I have explained, the Road Transport Directive is not written in the language of workers’ rights, as is the General Working Time Directive. In the context of the scheme for road transport in the Regulation and Directive viewed together, any rights granted to mobile transport workers appear to be, at best, weak rights when compared with the primary purposes of the regime. iv) Those primary purposes are concerned with the organisation of road transport (including ensuring competition between various modes of inland transport), and road safety. It is unsurprising that the Road Transport Regulation and the Road Transport Working Time Directive both consider that the essential means of enforcing the requirements in the light of those purposes is by means of a national system of penalties, aimed directly at drivers, supplemented by a system of inspection and notices. That penalty system is required to be “effective” in enforcing the relevant requirements. v) The Secretary of State, through VOSA, is responsible for those systems. As a matter of law, if the Secretary of State or VOSA fail in their obligations effectively to enforce the requirements, then they are amenable to judicial review. vi) Furthermore, as a matter of law, drivers cannot be required to work in contravention of the relevant requirements for breaks and rests: Mr Eicke submitted that to require them to work would be a breach of an implied term of their employment contract (that they would not be required to work in an illegal manner), and if they were dismissed or otherwise disadvantaged by refusing to work in such a manner then they would be entitled to the protection of the whistle-blower provisions of Part IVA of the Employment Rights Act 1996, and would have a right to bring a claim in an employment tribunal under the protective provisions of sections 47B and 48(1A) of that Act (Ross v Eddie Stobart Ltd (2011) UKEAT/0085/10/CEA). vii) Given the obligations imposed upon mobile road transport workers in terms of breaks and rest periods – and their enforceability through the criminal justice system – it is difficult to envisage circumstances in which a worker would have a civil claim against his employer, other than where he himself (the worker) would be guilty of an offence for infringement. That is materially different from the scheme that applies to general workers, through the Working Time Regulations. It is unsurprising that the relevant regulations do not introduce or envisage a right of claim that could only be exercisable in practice by an employee on the basis of his own criminal act. viii) Those are matters of law. In respect of effectiveness in fact, the Union have not submitted any evidence that the system of enforcement of the provisions relating to breaks and rest periods under the Road Transport Working Time Regulations are not effective. Indeed, the limited evidence that there is suggests the contrary. The First Report from the Commission on the Implementation of the Working Time Rules relating to Road Transport dated 3 August 2009 does not suggest that, in transposing the Directive, any Member State has adopted a procedure for a civil claim. Whilst the number of Member States that responded to the request for information as to the establishment of systems to check for the effectiveness of enforcement was small, the United Kingdom (together with four other Member States) did so; and there is no suggestion in the report that the VOSA system adopted in the United Kingdom was not effective, for want of a civil remedy or otherwise. In proposals for amending the Directive, it has not been suggested that a right to claim by individual action against an employer is necessary, or indeed that the system of penalties at the heart of the enforcement regime in ineffective in the United Kingdom. There is no evidence before me that a single mobile road transport worker has worked in breach of the requirements of the Road Transport Working Time Regulations at the behest or even with the knowledge of his employer; and certainly no evidence of a worker doing so who would not have so worked if he had had a right to claim against his employer.”

Submissions and disposition

[34]I will come on to identify the essence of Mr Hendy’s skilled and forceful arguments. But ultimately I am in no real doubt that Hickinbottom J reached the right conclusion on both issues and essentially (if not entirely) for the right reasons.[35]Mr Hendy made an eloquent appeal to the merits: which, he said, bore also on the application of the principles of equivalence and effectiveness. He complained about a position whereby millions of workers have entrenched rights to rest breaks and periods etc., with available access to an employment tribunal where required to work in denial of such rights. There should be no different outcome for mobile workers, he said (and indeed there is not for cross-border rail mobile workers). But as matters currently stand mobile workers have no means of direct enforcement of such rights: the most they can do is draw the matter to the attention of VOSA and then await such steps (if any) as VOSA may take. Moreover, in current economic conditions, he said, a reluctance or even fear on the part of mobile workers to raise such concerns with VOSA can be anticipated.[36]I understand that. But, as the genesis of the Directives and the various recitals show, it had been intentionally decided that mobile workers were not to be equated in all respects with the generality of workers. These points therefore – although understandable – are more in the nature of policy points which it is for the government to assess. But what still has to be considered is whether the resulting position is consistent with the requirements of European law and the domestic regime. (1). Equivalence[37]I can take this point shortly. Mr Hendy did not seek to devote over much argument to the point: and in my view the reasoning and conclusions of Hickinbottom J are demonstrably correct.[38]Mr Hendy acknowledged that the present case did not fall within the ambit of the principle of equivalence as ordinarily understood. This was just because there could here be no comparison between national rules implementing European laws and those governing comparable domestic actions: since both with regard to general workers and with regard to mobile workers the rights in each case derive from European Directives (or European Regulation). It is difficult to see, in such circumstances, how there can be discrimination against European law when the relevant rights in each case derive from European law.[39]Mr Hendy sought to rely, as he had before the judge, on the authority of Paquay v Société d’Architectes Hoet & Minne SPRL [2007] ECR I-8513; [2008] ICR 420. That case involved a Directive, 76/2007/EEC, which prohibited discrimination between men and women with regard to employment, and a Directive, 92/85/EEC which provided protection to pregnant workers. Different sanctions for breaches of the Directives were provided under the relevant domestic law (Belgian); and it was held that could not be sustained. At paragraphs 50 – 52 of the judgment this was said:
“50 If, under Articles 10 and 12 of Directive 92/85 and to comply with the requirements established by the case-law of the Court on the issue of sanctions, a Member State chooses to sanction the failure to respect obligations arising under Article 10 by granting a fixed amount of pecuniary damages, it follows, as the Italian Government pointed out in the present case, that the measure chosen by the Member State, in the case of infringement, in identical circumstances, of the prohibition on discrimination under Articles 2(1) and 5(1) of Directive 76/207 must be at least equivalent to that amount. 51 If the compensation chosen by a Member State under Article 12 of Directive 92/85 is judged necessary to protect the relevant workers, it is difficult to understand how a reduced level of compensation adopted to comply with Article 6 of Directive 76/207 could be deemed adequate for the injury suffered if the injury was brought about by a dismissal in identical circumstances and contrary to Articles 2(1) and 5(1) of that latter directive. 52 Moreover, as the Court has already stated, in choosing the appropriate solution for guaranteeing that the objective of Directive 76/207 is attained, the Member States must ensure that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of domestic law of a similar nature and importance (Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 24, and Case C-180/95 Draehmpaehl [1997] ECR I-2195, paragraph 29). That reasoning applies mutatis mutandis to infringements of Community law of a similar nature and importance.”
[40]In agreement with the judge, I do not think this provides any authoritative basis for extending the ambit of the principle of equivalence as ordinarily understood. Indeed the principle of equivalence is not even mentioned. Moreover the situation there arising – where rights potentially arose under each of the separate Directives on the same factual basis – does not obviously arise in the present case, given that the relevant Directives have specifically chosen to treat mobile workers differently from other workers. Further, Article 11 of the Mobile Workers’ Directive and Article 19 of the Drivers’ Hours Regulation in terms had left it to Member States to lay down the rules on penalties (“penal, civil or administrative”) in implementation.[41]In any case, the matter is settled by authority binding on this court: that is, in the case of Oyarce (supra). The Court of Appeal there had to consider, among other things, the reach of the decision in Paquay. Buxton LJ (with whom Longmore LJ and Richards LJ agreed) analysed Paquay at length. He pointed out, in paragraph 51 of his judgment, that what the Court of Justice was addressing was the obligation of effective transposition. The situation there arising in that case, he said:
“…has nothing to do with the principle of equivalence which…requires comparison not between two implementations of community requirements but between one implementation of community requirements and the sanctions provided in similar actions of a domestic, not community, nature…”
He went on in paragraph 54 to restate the principle of equivalence in conventional form.[42]That authority is decisive on the point. Mr Hendy could cite no authority other than Paquay to support his proposed extended principle. To assert, as he did, that mobile workers should have the same access to a tribunal as general workers in these situations thus becomes an expression of a view point, not a statement of principle.[43]In my view, therefore, this ground of appeal must fail. (2). Effectiveness[44]Effectiveness was, in fact, Mr Hendy’s main point of argument.[45]The principle is as set out above. In Oyarce, Buxton LJ (in dealing with the principle of effectiveness) noted, at paragraph 56, that the requirement is that domestic rules should not render the assertion of the community right “impossible or excessively difficult”: see also Unibet (London) Ltd v Justitiekanslern Case C-432/05, [2007] ECR I-2271 at paragraph 43 (“practically impossible or excessively difficult”). As Mr Eicke submitted, the bar is set very high.[46]The judge considered that the Drivers’ Hours Regulation (and the 2005 Regulations) were framed in terms of obligations on drivers, rather than in terms of private rights: they do not talk in terms of “entitlement”. That is true. No doubt that is in considerable part so as to lay the groundwork for sanctions on drivers who are in breach of the Regulations. But the recitals to the Mobile Workers’ Directive indicate that the safety and health of mobile workers is one of the aimed for protections: and the recitals to the Drivers’ Hours Regulation and Article 1 of that Regulation, in their reference to improving working conditions, is consistent with that. So, disagreeing with the judge on this, I think that an element of “right” on the part of the mobile workers in question can indeed be said to exist: even if the principal focus is on road safety and on obligations.[47]That said, I nevertheless think the reasons given by Hickinbottom J in paragraph 84 (iv) to (viii) of his judgment, and re-emphasised in Mr Eicke’s submissions, provide a complete answer on this point.[48]One can perhaps envisage five principal categories, for present purposes, where the enforcement provisions laid down in the 2005 Regulations may potentially come into effect. The first is where an individual carrying on his own trade or business or who is self-employed is in breach of the Regulations. The second is where an employed driver, contrary to instructions, breaches the Regulations – for example, with a view to (say) getting home early. The third is where an employed driver breaches the Regulations on the requirement of his employer. The fourth is where an employed driver is required to breach the Regulations but declines to do so. The fifth is where an employed driver receives no instruction on the 2005 Regulations from his employer.[49]The first three categories, as it seems to me, give rise to a position whereby the driver cannot even prima facie be expected to seek or need redress. Indeed he will himself be liable to prosecution: and any attempt to claim compensation by way of civil proceedings in a tribunal could be met by a plea of ex turpi causa or by the obvious submission that it would not be just and equitable for him to recover compensation. Such persons thus have, in reality, no recoverable loss. The main focus of attention thus needs to be on the fourth category (and, as Jackson LJ pointed out in argument, one can postulate, at least in theory, examples of potential actual loss by reference to Article 10.1 of the Drivers’ Hours Regulation) and on the fifth category.[50]I think that in the circumstances the enforcement provisions enshrined in the 2005 Regulations are not such as to render the right of an affected driver “practically impossible or excessively difficult” to assert. Article 11 of the Mobile Workers’ Directive expressly leaves it to Member States to lay down a system of penalties. Article 19 of the Drivers’ Hours Regulation – to be read in the light of recital (27) – likewise expressly leaves it to Member States to lay down rules on penalties: which, it is to be inferred from recital (27), may be penal or civil or administrative. In the present situation, Parliament has elected to provide for criminal penalties (potentially applicable to both drivers and employers) and has further bestowed on VOSA wide powers of enforcement in that regard.[51]Any employee has access to VOSA to make any relevant complaint. If he is threatened with dismissal, he further may rely on the protected disclosure provisions of the employment legislation. He also, I might add, if instructed to act in breach of the Regulations, would have a potential civil claim against his employer for breach of implied duty in the contract of employment.[52]All this tells strongly against the principle of effectiveness being infringed. The solution devised by Parliament was a proper one. That others may (entirely understandably) think – as apparently the previous government did think and as the claimant does think – that the position could be improved upon by bringing it more in line with the position relating to general workers is, ultimately, nothing to the point. As Sir Richard Buxton said on the application for permission, that an enforcement regime is not ideal does not in itself mean that enforcement is practically impossible or excessively difficult. All of this is strongly reinforced, moreover, by the telling finding of fact by the judge in paragraph 84(viii) of his judgment that there was simply no evidence that the current system of enforcement of the provisions relating to breaks, work periods etc. provided under the 2005 Regulations had been found not effective.[53]Mr Hendy complained that enforcement through VOSA at best represented indirect enforcement of a driver’s rights under the Drivers’ Hours Regulation (and the 2005 Regulations). It gave, he said, no direct protection of a driver’s rights. I do not think appeals to “directness” or “indirectness” in this particular context can carry the day. What has to be considered is whether the enforcement provisions provided under the 2005 Regulations infringe the principle of effectiveness. Here, in my view, as indicated, they do not. The assertion of the rights under the Drivers’ Hours Regulation (bearing in mind also the emphasis is on the obligations on the drivers themselves as well as on the employer undertakings) is not thereby rendered practically impossible or excessively difficult. On the contrary, the powers of VOSA are very wide: and there is nothing in the Road Transport Working Time Directive or Drivers’ Hours Regulation to require, for purposes of effectiveness, additional remedies over and above the kinds of criminal penalties which in fact have been made available under the 2005 Regulations. It is to be re-emphasised, in this regard, that both the Road Transport Working Time Directive and the Drivers’ Hours Regulation had themselves contemplated penalties which were “penal” as one valid means of enforcement. No particular additional civil remedy was required.[54]In such circumstances, I also reject Mr Hendy’s assertion that, by failing to give mobile workers access to an employment tribunal in this context, the United Kingdom is obstructing the direct application of the Drivers’ Hours Regulation. That, having regard to its terms, is not a tenable proposition.[55]Mr Hendy mounted an elaborate argument by reference to the decision of the Court of Justice in Antonio Muñoz y Cia SA & Anr v Frumar Ltd & Anr [2003] Ch 328; Case C-253/00. That was a case involving circumstances very different from the present. The claimants claimed that the defendants (fruit importers in competition with the claimants) sold grapes which were incorrectly named contrary to Council Regulation (EC) 2200/96. Complaint to the Horticultural Marketing Inspectorate resulted in no action on the complaint: it would seem that no judicial review proceedings were commenced with regard to that. In an ensuing action in the Chancery Division, it was held that the relevant Regulations did not give the claimants a right to sue for breach of those Regulations. The Court of Justice, however, held the Community rules on quality standards had to be given full practical effect: and in order to achieve that the Regulations were to be regarded as capable of enforcement by means of civil proceedings brought by a trader against a competitor.[56]That does not correspond to the situation arising in the present case. The decision in Muñoz may or may not suggest that a haulage company might be able to sue for breach of the Drivers’ Hours Regulation a competitor able to undercut prices by reason of wilful evasion of the requirements for rest breaks etc. It is not necessary to express a view on that. That is not the situation here. Here, an employed driver (who will not, in the ordinary way, have himself suffered any recoverable financial loss) can complain to VOSA. There is no evidence whatsoever that VOSA does not act on justified complaints: in any event, unjustifiable inaction on the part of VOSA could potentially be the subject of judicial review.[57]Mr Hendy drew particular attention to paragraphs 46 to 48 and 54 to 55 of the Opinion of Advocate General Geelhoed in Muñoz and to paragraphs 27 to 32 of the judgment of the Court and its emphasis on the need for national courts to ensure the provisions of Community law take full effect. It is not necessary to set out those passages verbatim here. In my view, these passages from the decision in Muñoz do not lend any real assistance to the claimant’s case. That Community law may, in some contexts, require the availability of civil proceedings in private law to uphold rights against a competitor does not mean that, in other contexts, and under different regulatory schemes, enforcement may not properly be limited to other means outside the private law. As Advocate General Sharpston observed in Unibet at paragraph 53 of her Opinion, it appeared that in the absence of such a right of action in Muñoz there would have been no possibility for the assertion of the right to enforce the obligation. In any event the context of Muñoz, and the purpose behind and scheme of the relevant Regulation there under discussion, were very different from the present case.

Conclusion

[58]I would therefore dismiss the appeal on both grounds advanced.

Lord Justice Elias:

[59]I agree.

Lord Justice Jackson:

[60]I also agree.

Cited in 1 later judgment