European Court of Justice: Employee’s right to compensation in case of employer’s failure to comply with the obligation to assess the health of night workers

At a glance

• The European Court of Justice (ECJ) dealt with a request for a preliminary ruling concerning the employer’s obligation of compensation for damages if an employee is required to work during nightshifts and no health check is done, despite been mandatory.
• The ECJ clarified that Article 9(1)(a) of Directive 2003/88 in itself does not give rise to a right to compensation without the need to prove the existence of specific harm on the part of the worker concerned as a result of that failure. 

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The legal context is set out in Article 9(1)(a) of Directive 2003/88/EC (Working Time Directive). Article 9(1)(a) of that directive provides that Member States shall take the measures necessary to ensure that night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals.

The claimant in the main proceedings brought an action before the court seeking, ie, compensation for damages. In support of this claim, they relied on the fact that they had not received the enhanced medical check-ups applicable for night work. The competent court dismissed the claim for damages on the ground that the claimant had not proved the existence and nature of the harm which he claimed to have suffered as a result of not being given the enhanced medical check-ups applicable for night work.

The referring court asks whether Article 9(1)(a) of Directive 2003/88 must be interpreted as precluding national legislation under which, in the event of a breach by the employer of the national provisions concerning the medical examination of night workers, the right to compensation for that breach is subject to the condition that the employee proves the damage suffered.

The ECJ held that the French provisions requiring a proof of the damage which would have resulted from the breach of the employer’s obligation to assess the worker’s health was lawful. 

It found that national legislation such as that at issue in the main proceedings is not capable of undermining the effectiveness of the rights deriving from Article 9(1)(a) of Directive 2003/88. The ECJ clarified that Article 9(1)(a) of Directive 2003/88 in itself does not give rise to a right to compensation without the need to prove the existence of specific harm on the part of the worker concerned as a result of that failure. Directive 2003/88 does not contain any provision regarding the sanctions applicable where the minimum requirements laid down by it are infringed, or any specific rule regarding the reparation for the loss or damage which may have been suffered by workers as a result of such an infringement.