Managing working time: The law and working time
Section two of the Personnel Today Management Resources one stop guide to managing working time. Other sections.
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Understand Working Time Regulations 1998 Understand the significance of the 48-hour opt-out Learn about other
legislation that affects working time |
Recent years have seen a flurry of legislative reforms affecting working time of which the most significant has undoubtedly been the Working Time Regulations 1998.
THE WORKING TIME REGULATIONS 1998
The Working Time Regulations (WTR) are the UK's response to the European Union Working Time Directive and have courted much controversy because of the UK's insistence on a clause allowing workers to opt out of the 48-hour weekly working limit imposed by the EU directive.
48-hour opt out
Employers' bodies have consistently supported the opt-out, believing it helps UK businesses be more competitive. But the Trade and Industry Select Committee said in its Report on UK Employment Regulation, published earlier this year, that it was not convinced by the arguments for retaining the opt-out, along with saying that the right to request flexible working for the parents of young children should be extended to all those with caring responsibilities.
Because of the opt-out agreement, the impact of the Working Time Regulations has been diluted - although it did increase the annual holiday entitlement to 20 days, with two million workers receiving paid holidays for the first time and four million benefiting from an increase in holidays.
In May 2005, amid much opposition from business groups, the European Parliament voted to remove the opt-out provision by 2010. However, a month later, the EU's Council of Ministers failed to ratify that decision and it has now been passed back to the European Commission for further consideration. It is now anticipated there will be a further 12 months before a decision can be made one way or the other.
Since the introduction of the opt-out, a number of issues have come up, including whether employees face pressure to sign such an agreement. The British government's consultation document, published in June 2004, examined some issues such as whether the opt-out as part of a contract is unlawful; whether the opt-out should be time limited, but renewable; whether there should be a maximum hours limit for opted-out workers; and whether there should be more effective monitoring of hours actually worked.
Europe's influence
Although only 16% of employees in the UK claim to work more than 48 hours a week, according to data from the Labour Force Survey, there is widespread concern in the UK over the impact of losing the opt-out.
But it is not just the UK which is digging its heels in at the prospect of less flexibility. 'New Europe', as represented by Eastern European members of the EU, is anxious to do all it can to heighten its competitiveness and is aligned with the UK's stance. 'Old Europe', as in France, Germany and the Benelux countries, is accustomed to having highly-regulated labour markets and can see little reason for an opt-out.
In the UK, many believe the loss of the opt-out would harm sectors such as construction, transport, hospitality and leisure by reducing labour market flexibility. The British Hospitality Association estimates that additional training and recruitment as a result of the opt-out being scrapped would set industry back at least £200m.
Almost 80% of 750 employers questioned in a survey for Personnel Today published in January 2003 wanted to retain the clause, believing efficiency would suffer and wage bills increase if removed.
The CIPD is in favour of retention of the opt-out, saying cutting hours could create recruitment difficulties as well as pressure on wages to rise.
The European Parliament is reviewing various other recommendations from its Social Affairs Committee. Apart from phasing out the individual opt-out over three years, these include averaging out the working week over a year, rather than the current 17 weeks.
As the TUC points out, this would still allow people to work more than 48 hours a week as long as over a year their average working week was less than 48 hours. But the committee is proposing safeguards to ensure the health and safety of workers and the public are not put at risk.
Two further changes have also been proposed. First, as employers request, there should be a weakening of the rules that say that time spent on call at an employer's premises counts as work. But second, as unions support, employees should have a right to have requests to vary their hours considered seriously by employers.
Weekly ceiling
The European Commissioners also seem to favour the possibility of introducing a weekly ceiling of 65 hours and handing over the power to individual states to legislate on a 52-week reference period. If the latter is adopted, which seems likely, it would be a significant boost to the annual hours approach to organising working time and would reflect the trend towards annualisation for economic reasons.
The introduction of a weekly ceiling of 65 hours is unlikely to have much of an impact. Under current legislation, if rest periods are taken into consideration but not meal breaks, this could add up to 90 hours a week - 78 hours inclusive of breaks. If the 65-hour limit is introduced, this will probably be exclusive of breaks. Taking a six-day week under the proposed revised regulations, this would mean six hours of meal breaks which adds up to 71 hours, ie not much lower than 78.
CALCULATING AVERAGE WEEKLY WORKING TIME
The average number of hours worked in a week is currently calculated by dividing the total number of hours worked during the relevant reference period by the number of weeks in the reference period. Under the Working Time Regulations, average weekly working time is normally required to be calculated over a reference period of 17 weeks, although this can be extended from 17 to 26 weeks and up to a maximum of 52 weeks where there is an agreement between the employer and workers.
Extension to 26 weeks
An extension to 26 weeks can occur automatically in situations where a worker is covered by one of the special case exemptions. These include where:
the worker's place of work and place of residence, or different places of work, are distant from one another
the worker is engaged in security or surveillance activities requiring a permanent presence
the worker's activities involve the need for continuity of service or production
there is likely to be a foreseeable surge of activity such as can occur seasonally in retail, tourism and postal services
the worker's activities are affected by force majeure (an event that no human foresight could anticipate or which if anticipated, is too strong to be considered, such as an industrial strike which leads to loss of profits), accident or imminent risk of an accident.
Extension to 52 weeks
The reference period can be extended to 52 weeks through a collective or workforce agreement.
If you are an employer, you need to keep records that show:
the weekly working time and night work limits are complied with in your business. It is for you to determine what records need to be kept for this purpose. You may be able to use existing records maintained for other purposes, such as pay, or you may need to make new arrangements
you do not have to keep a running total of how much time workers work on average each week. (How you monitor your workers' hours depends on particular contracts and work patterns.)
you need only make occasional checks of workers who do standard hours and who are unlikely to reach the average 48-hour limit. However, you should monitor the hours of workers who appear to be close to the working time limit - and make sure they do not work too many hours
you need to keep an up-to-date record of workers who have agreed to work more than 48 hours a week, but you do not need to record how many hours they actually work
you must offer regular health assessments to night workers. You should keep a record of the name of the night worker, when an assessment was offered (or when the worker had the assessment if there was one) and the result of any assessment. All records must be kept for two years.
COMPENSATORY REST
Compensatory rest is normally a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed.
The regulations give all workers a right to 90 hours of rest in one week. This is the total entitlement to daily and weekly rest periods. The exceptions allow rest to be taken in a different pattern to that set out in the regulations. The principle is that everyone gets his or her entitlement of 90 hours' rest a week on average, although some rest may come slightly later than normal.
DEFINING WORKING TIME
In terms of the debate over what constitutes 'working time', according to the Working Time Regulations, it is when someone is "working, at his employer's disposal and carrying out his activity or duties". This includes working lunches, such as business lunches; when a worker has to travel as part of their work, such as in the case of a 24-hour mobile repairman; when a worker is undertaking training that is job-related; and time spent abroad if a worker works for an employer who carries on business outside the UK.
It does not include routine travel between home and work; rest breaks when no work is done; time spent travelling outside normal working time; and training such as non-job-related evening classes or day-release courses.
Time on and off call
Another area up for review is that of where to draw the line between active and inactive working hours.
On 3 October 2000, the European Court of Justice passed judgment on a Spanish case concerning the status of on-call time in Sindicato de Médicos de Asistencia Publics (SIMAP) v. Consellería de Sanidad y Consumo de Generalidad Valenciana (Case C-303/98).
'On-call' time was held to be working time when a worker is required to be at their place of work. When they are allowed to be away from the workplace during on-call time and are thus free to indulge in leisure activities, this 'on-call' time is not 'working time'.
A German case also relating to doctors was that of Jaegar v. Landeshaupstadt Kief. Basically, where doctors are required to stay at a hospital while 'on-call', this counts as working time, towards the 48-hour total. This has had enormous consequences right across Europe in terms of how many doctors are required, with France considering bringing in a provision for doctors to opt out of the 48-hour limit.
Although these judgments related to doctors employed in primary healthcare situations, this approach may be adopted in other areas. There could come a time when, for example, a maintenance engineer is deemed to be working while in the restroom waiting to mend machinery.
Some argue that the recent changes to doctors' contracts in the UK's National Health Service have been inspired by these judgments, such as doctors no longer being required to provide emergency cover. Health authorities have set up specific bodies to deal with out-of-hours cover rather than doctors being on call at night.
Unmeasured working time
Working time limits and rest entitlements, apart from those applicable to young workers, do not apply if a worker can decide how long they work. The test, according to the regulations, is that a worker falls into this category if "the duration of his working time is not measured or predetermined, or can be determined by the worker himself".
Employers need to consider whether a worker passes this test. Workers such as senior managers, who can decide when to do their work and how long they can work, are likely to pass the test whereas those without this freedom are not
Partly measured working time
There is an exception for those workers for whom part of their working time is predetermined, but who otherwise decide how long they work. The test is:
"The specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work - in addition to that which is measured or pre-determined - the duration of which is not measured or pre-determined or can be determined by the worker himself."
Time spent on additional work will not count as working time towards the weekly working time or night work limits. Therefore, any additional hours the worker chooses to work without being required to do so by their employer do not count as working time. This exception is restricted, therefore, to those with the capacity to choose how long they work. The key factor is worker choice without detriment.
This exception does not apply to the following:
Hourly paid working time
Prescribed hours of work
Situations where the worker works under close supervision
Any time where a worker is expressly required to work, for example attending meetings
Any time a worker is implicitly required to work, for example, because of the loading or requirements of the job or because of possible detriment if the worker refuses.
Night working
In terms of night working, UK engineering union the AEU took the issue of night work to the EC, challenging the UK interpretation that only overtime which is part of night workers' normal hours of work can be included in the average, with the idea that only contractual not voluntary work counted. The union succeeded in getting this overruled in July 2003.
According to the regulations:
a night worker is someone who normally works at least three hours a night
night time is between 2300 and 0600, although workers and employers may agree to vary this
night workers should not work more than eight hours daily on average, including overtime where it is part of a night worker's normal hours of work
nightly working time is calculated over 17 weeks although this can be longer in some situations
a night worker cannot opt out of the night work limit
young workers should not ordinarily work at night, although there are certain exceptions.
Employer's checklist
According to the DTI's Guide to the Working Time Regulations, employers need to check:
whether people they employ could be classified as night workers
how much working time night workers usually work
if night workers normally work more than eight hours a day on average, how they can reduce hours of work or whether any exceptions or flexibilities apply
whether a worker does work which may be particularly hazardous.
Employers need to offer night workers a free health assessment before they start working nights and on a regular basis while they are working nights. It may be enough to do this once a year. Such assessments can be made up of a questionnaire and a medical examination if the employer has doubts about the worker's fitness for night work.
ROAD TRANSPORT REGULATIONS
April 2005 saw the introduction of the amended Road Transport Directive. At that time, 90% of UK lorry operators were not fully compliant with the directive, according to research by the Freight Transport Association (FTA).
The general consensus within the haulage industry is that the weekly average currently exceeds 55 hours. According to the FTA study of 250 companies, this means more staff are now required to do the same amount of work and company costs will rise.
The regulations:
supplement EU Drivers Rules (EC 85/3820)
extend EU Drivers rules to non-driving mobile workers
exclude 'occasional' mobile workers
will cover the self-employed from 2009
place a limit of a maximum 60 hours worked in any one week
say breaks, 'periods of availability' andvoluntary work, do not count
set default fixed reference periods of 17 and 18 weeks (up to 26 weeks by collective agreement)
say complete weeks of sickness/statutory annual leave, and so on, count as 48 hours for a complete week and eight hours per day in calculation of average hours worked
set a 10-hour night work limit (extendable by collective agreement).
Which reference period to use to calculate working time
Employers should agree in advance which method will be used for calculating and monitoring working time. Where this is not possible, the standard default reference periods will apply.
Many employers will opt to use the 17-week rolling reference period as already used under the Working Time Regulations 1998. Some employers, however, may prefer to use an agreed fixed reference period up to a maximum of 26 weeks. This can provide added flexibility and prove easier to monitor and enforce. Tactical usage of reference period starts and finishes and annual hours contracts may assist businesses who have predictable seasonal peaks and troughs, to schedule their working time more effectively.
If an employer wishes to use individual agreements to determine reference periods in advance, such as if when they need to cater for part-time workers, they should note that the maximum length of a reference period allowed under these arrangements is 18 weeks.
Different reference periods can be used for different groups of workers as long as they are made aware of the method used. The method can also be changed as long as workers agree to this. Employers also need to make sure the 48-hour average weekly maximum is not exceeded as a result.
Annual leave and sick-leave periods
Statutory paid annual leave as provided under the WTR and periods of sick leave cannot be taken into account in working time calculations. But annual leave over and above the statutory four-week entitlement can be taken into account. Where workers are entitled to an additional period of contractual paid annual leave over and above the statutory minimum, this additional leave can be used to reduce the average weekly working hours once the initial four weeks have been used up.
Suitability of tachographs
Under the regulations, employers need to keep records to show compliance with weekly working time and night-time work limits, monitoring working time to make sure the 48-hour average weekly limit is not exceeded.
The Department for Transport acknowledges that many employers in the sector will use information and data from tachograph records to monitor the working time of their employees. It advises employers to instruct drivers to use separate modes of recording different types of activity to ensure the records provide an accurate reflection of working time as defined under the regulations. Although the EU Drivers' Hours Rules require that tachograph records are only kept for one year, the new regulations require that records are kept for two years.
OTHER LEGISLATION AFFECTING WORKING TIME
Flexible working
The widely held view that there is a statutory right to flexible working under UK law is actually incorrect - the right only extends to 'requesting' flexible work.
This statutory right to request flexible working is provided under the Employment Rights Act 1996 (ERA) as amended by the Flexible Working (Procedural Requirements) Regulations 2002 and the Flexible Working (Eligibility, Complaint and Remedies) Regulations 2002.
The regulations provide that only a 'qualifying employee' will be able to exercise the right to request flexible working arrangements to enable them to care for a child. Employers can only refuse a request for flexible working where there is a clear business reason.
To be eligible to apply for flexible working, the individual must:
be an employee
have a child under six years of age, or under 18 years if disabled
be responsible for the child as its parent
be making the application to enable them to care for the child
have worked with their employer continuously for 26 weeks at the date the application is made
not be an agency worker
not be a member of the Armed Forces
not have made another application to work flexibly during the previous 12 months.
Part-time working
Employers are advised to think twice about refusing employee requests to work part-time in the light of a recent case.
A pilot who was refused the right to work part-time to look after her baby recently won her sex discrimination case. Jessica Starmer said she would have had to resign from her £50,000 a year job if British Airways (BA) bosses did not cut her working hours so she could look after her daughter.
Starmer, who spent 800 hours a year flying shorthaul Airbus A320 flights from Heathrow, took her case to an employment tribunal, which found in her favour.
BA denied sex discrimination, saying its decision to deny the request to halve her working hours was made on safety grounds as it requires pilots with less than 2,000 hours flying time to work at least 75% of a normal rota. Starmer had completed about 1,100 hours. The airline also said it would be too expensive to have two part-time pilots covering Starmer's duties. It told the tribunal she did not have enough flying time to qualify for 50% part-time working. But pilot's union Balpa said the safety rule was only introduced five months after Starmer's request had been refused.
Under the Part Time Workers (Prevention of less favourable treatment ) Regulations 2000 1/7/2000, which implements the European Commission's Part Time Working Directive, it is unlawful for employers to treat part-time workers less favourably than full-time staff, giving them holiday pay, bank holidays, payment and so on pro rata for equivalent roles.
TEMPORARY WORKERS
The Agency Workers Directive, or Temporary Workers' Directive, is currently stalled with the European Council. If implemented in its current form it would give temporary workers the same pay and rights as permanent staff once they have been on assignment for more than six weeks. UK agency workers would be granted the right to the same treatment as permanently employed colleagues on issues including pay, working time and holidays, maternity rights and protection against discrimination.
Employer groups argue that an agency worker should not qualify for the rights under the directive until they have been in the same job for 12 months. However, the UK Government is currently calling for a six-month qualifying period.
Working Time legislation
EU Working Time Directive 1994
Young Workers Directive 1994
Seafarers Directive 1999
Seafarers Enforcement Directive 1999
Horizontal Amending Directive 2000
This covers all those workers excluded from the Working Time Directive and any sector-specific directives:
Aviation Directive 2000
Road Transport Directive 2002
Working Time Directive 2003
UK Working Time Regulations 1998
Working Time Regulations 1998
Working Time (Amendment) Regulations 1999
Working Time (Amendment) Regulations 2001
Working Time (Amendment) Regulations 2002
Merchant Shipping (Hours of Work) Regulations 2002
Working Time (Amendment) Regulations 2003
Civil Aviation (Working Time) Regulations 2004
Merchant Shipping (Hours of Work) (Amendment) Regulations 2004
Road Transport (Working Time) Regulations 2005
Proposed Agency Workers Directive
Part Time Workers (Prevention of less favourable treatment ) Regulations 2000
Flexible Working - Right to Request (from April 2003).
Who is covered by the Working Time Regulations?
The UK Working Time Regulations cover all workers except:
the self-employed
mobile workers in sea transport, fishing, inland waterways and civil aviation
young persons below school-leaving age.
There is limited coverage for:
mobile workers in road transport subject to EU drivers rules
those in the armed forces, the police and emergency services.
European Commission proposals to modify the Working Time Directive
Tight definition of on-call time and inactive on-call time
Handing power to individual member states to legislate on extending reference periods up to one year rather than being subject to collective agreements
Compensatory rest in special circumstances must be granted within reasonable time and in all cases, within 72 hours for daily rest
Individual opt-out subject to collective agreement except where no collective agreement exists
Individual written agreement required, valid for up to one year and renewable
Individual agreements given at the time of signing employment contracts or during probation null and void
Maximum of 65 hours a week, unless collective agreement provides otherwise
Employees to keep up to date records including hours actually worked, available to authorities on request
Authorities may restrict, prohibit hours in excess of weekly hours on health and safety grounds.
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Average 48-hour working week
17-, 26- and up to 52-week reference periods
Average eight hours per day limit for night workers
Annual health assessments for night workers
Four weeks paid annual leave
Weekly rest periods of one day in seven or two per fortnight
Daily rest periods: 11 hrs in 24
Rest breaks: 20 minutes for six or more hours
'Special circumstances' and compensatory rest
Record Keeping requirements
Enforcement by HSE and sector specific industry bodies
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Section one: Why employers must
tackle working time |
