The Working Time Regulations 1998

A detailed analysis of the UK's first ever comprehensive statutory framework regulating working hours and annual holidays.

The Working Time Regulations 19981 ("the Regulations"), which came into force in England, Wales and Scotland2 on 1 October 1998, are designed to implement the provisions of the EC Working Time Directive (No.93/204/EC) and certain aspects of the EC Young Workers Directive (No.94/33/EC).

The Regulations were published for consultation3 earlier this year and a number of important amendments were subsequently incorporated into the final text. This article provides a detailed analysis of the Regulations, explaining the rights and entitlements granted to workers and the key obligations placed on employers in seeking to comply with the new legislation.

The Regulations are highly complex and give rise to a number of difficult areas of interpretation, many of which stem from unclear provisions in the two Directives. Where appropriate, we refer to the Department of Trade and Industry's guidance on the Regulations4 ("the DTI guide"). The guide outlines the Government's views on some of the key issues under the Regulations, but "should not be regarded as a complete or authoritative statement of the law". Nor does it have the status of, for example, a statutory code of practice.

The Working Time Directive

The Working Time Directive was adopted on 23 November 1993 as a "health and safety" measure under Article 118a of the Treaty of Rome ("the Treaty"), and required implementation by member states within three years. However, the then Conservative Government took no steps to prepare for implementation pending its application to the European Court of Justice to have the Directive annulled on the grounds that its legal basis was defective. In November 1996, the ECJ rejected the UK Government's challenge on all but one minor point (United Kingdom of Great Britain and Northern Ireland v Council of the European Union5).

The previous Government then issued a consultation document6 on implementing the Directive, whilst at the same time seeking to negotiate the "disapplication" of the Directive from the UK. However, the incoming Labour Government adopted a much more positive attitude to the Directive. The DTI issued a fresh consultation document3, incorporating draft Regulations, in April 1998, prior to the final version of the Regulations being laid before Parliament on 30 July 1998.

The Young Workers Directive

The Young Workers Directive was also adopted under Article 118a of the Treaty, on 22 June 1994, and required implementation within two years. Implementation in the UK has turned out to be a piecemeal affair, via four different sets of Regulations:

  • the Directive's core health and safety provisions were implemented by the Conservative Government in March 1997 through the Health and Safety (Young Persons) Regulations 19977;

  • the Children (Protection at Work) Regulations 19988, which came into force on 4 August 1998, implement the requirements of the Directive as to children under minimum school-leaving age;

  • the Working Time Regulations 1998 - the subject of this article - are designed to implement the Directive's working-time restrictions on "adolescent" workers (that is, workers above minimum school-leaving age but under 18); and

  • the Fishing Vessels (Health and Safety) (Employment of Children and Young Persons) Regulations 19989, issued by the Department of Environment, Transport and the Regions, contain measures relating to young people working on seagoing ships. These Regulations came into force on 30 October 1998.

    Government's policy approach

    In contrast to the previous Government's policy of outright opposition, the present Government considers that both the Working Time Directive and the Young Workers Directive represent important additions to health and safety protection. The Government's April 1998 consultation paper stated: "The Directives will provide protection to the most vulnerable employees against working excessive hours and will give them a right to the sorts of entitlements, in terms of rest breaks at work, rest periods from work and paid annual leave, enjoyed by the majority of workers in the UK." Moreover, the Government believes that the Directives contribute to its broader policy of promoting "family-friendly" employment.

    However, the Government has also sought to introduce "maximum flexibility" into the Regulations, taking advantage of the extensive "derogations" provided for in the Directives where it believes there is a case for doing so (see below).

    EC law principles apply

    As in the case of any UK legislation deriving from an EC Directive, the following points should be borne in mind when considering the potential for legal claims under the Regulations:

  • wherever possible, courts and tribunals will be required to interpret the provisions of the Regulations "purposively", so as to give effect to the UK's obligations under the relevant Directive;

  • workers employed by the state or an "emanation of the state" may seek to rely directly on provisions of the appropriate Directive as against their employers, in circumstances where they claim that the Regulations do not adequately fulfil the Directive's requirements; and

  • theoretically at least, it may be possible for workers to bring "Francovich claims" for damages, on the basis that they have suffered loss as a result of the UK's failure properly to implement the requirements of one or other of the Directives in the Regulations.

    KEY DEFINITIONS

    Regulation 2 sets out definitions of a number of key terms used throughout the Regulations. Certain of these interpretative provisions are of crucial importance in understanding the scope of the proposed legislation and how it will work in practice, in particular:

  • the definition of "working time";

  • the three categories of agreement between employers and workers catered for by the Regulations: collective agreements, "workforce agreements" and "relevant agreements"; and

  • the definitions of "worker" and "young worker".

    "Working time"

    Under the Working Time Directive, "working time shall mean any period during which the worker is working, at the employer's disposal and carrying out his activities or duties, in accordance with national laws and/or practice". The definition in the Young Workers Directive is almost identical.

    The Regulations do not expand the definition much further. Reg. 2(1) merely states:

    "working time", in relation to a worker, means -

    (a)any period during which he is working, at his employer's disposal and carrying out his activities or duties,

    (b)any period during which he is receiving relevant training, and

    (c)any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement;

    and "work" shall be construed accordingly ...

    "Relevant training" is defined as "work experience provided pursuant to a training course or programme, training for employment, or both"10. It does not include work experience or training which is provided on a course run by "an educational institution or a person whose main business is the provision of training". However, it may be the case that the definition of "working time" under para. (a) above covers attendance by a worker on such a course which is closely related to his or her job function.

    From para. (c) of the above definition, it can be seen that the Regulations allow for workers and employers to make a "relevant agreement" (see below) specifying what constitutes working time at a particular place of work. Such an agreement might, for example, provide that a worker's presence at his or her workplace is sufficient to qualify as working time for the purposes of the Regulations; or that all "contractual" time counts, even if it includes rest breaks or periods spent away from the place of work.

    In the absence of such clarification, the basic definition of "working time" in reg. 2(1) is bound to give rise to difficult issues of interpretation, which will ultimately be for the employment tribunals and courts to decide. It is important to recognise that all three elements of the definition must be satisfied - that is, a worker must be (a) working; (b) at his or her employer's disposal; and (c) carrying out his or her activities or duties - in order for time to qualify as "working time".

    The DTI guide highlights some of the areas where particular problems may arise. For example, there is time when a worker is "on call", but otherwise free to carry on their own pursuits until such time as they are required. That would probably not count as "working time" because the worker is not actually performing any work. In contrast, shop assistants or waiters may have to wait around until required to serve a customer, but they are clearly "working" during such time. However, in other contexts it may be more difficult to say precisely what constitutes "working" for the purposes of the reg. 2(1) definition.

    Similar problems arise in relation to lunch breaks and travelling time. According to the DTI guide: "A lunch break spent at leisure would not be working time. If a worker were obliged to participate in a working lunch as part of their work then it would be working time. Time spent travelling to and from a place of work is unlikely to be working time as a worker would probably neither be working nor carrying out their duties. A worker may well be doing both if they are engaged in travel that is required by the job."

    Agreements

    The prescription of what constitutes working time is just one of the areas where the Regulations enable workers and employers to enter into agreements to establish the way in which the working-time rules are to apply to the particular circumstances of their own workplaces. And in some instances, such agreements are permitted to "derogate" from the strict requirements set out in the Regulations (see below).

    Provision is made for three categories of agreement: collective agreements; workforce agreements; and relevant agreements.

    Collective agreements

    The Regulations adopt the definition of collective agreement in s.178 of the Trade Union and Labour Relations (Consolidation) Act 1992 - "any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers' associations"- with the further requirement that the unions concerned must be independent trade unions (reg.2(1)). Collective agreements are generally reduced to writing, but the statutory definition does not require this.

    Workforce agreements

    A "workforce agreement" is defined as "an agreement between an employer and workers employed by him or their representatives" (reg. 2(1)). This is a new concept which enables employers to make agreements on working time with any workforce or part of a workforce whose terms and conditions are not set by collective bargaining. Schedule 1 to the Regulations sets out the conditions and requirements that must be satisfied in order for an agreement to have the status of a workforce agreement (see the adjacent box).

    Essentially, employers may conclude a workforce agreement either:

  • with the elected representatives of the "relevant members of the workforce" (that is, workers whose terms and conditions are not determined by a collective agreement);

  • with the elected representatives of a particular group of relevant members of the workforce; or

  • if the employer employs 20 or fewer workers, either by the appropriate workforce representatives or by a majority of the workers themselves.

    The framework for the election of workplace representatives is modelled on the legislation requiring employers to inform and consult "employee representatives" over collective redundancies and on transfers of undertakings (see Consultation on redundancies and business transfers), and the Regulations are broadly consistent with recent government proposals to amend those existing obligations so as to improve their operation.

    Indeed, there is nothing to prevent a worker from being elected as both a workforce representative for the purposes of negotiations on working time and as an employee representative under the redundancy and transfer of undertakings consultation provisions - so long as it is clear that the person concerned is being elected or re-elected for both purposes. (In addition, or alternatively, the person concerned could be a "representative of employee safety" under the Health and Safety (Consultation with Employees) Regulations 199611.)

    The Regulations amend the Employment Rights Act 1996 (the ERA) so as to provide workers with protection against unfair dismissal or any other detriment imposed by their employer by reason of failing to sign a workforce agreement or performing functions or activities as a workforce representative (or standing for election as such).

    Relevant agreements

    "Relevant agreement" is an umbrella term, used at many points throughout the Regulations, which encompasses both collective agreements and workforce agreements, together with certain other agreements in writing. The latter would include, for example, the written terms of a worker's contract of employment. Regulation 2(1) defines "relevant agreement" as "... a workforce agreement which applies to [a worker], any provision of a collective agreement which forms part of a contract between [the worker] and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer."

    "Worker" and "young worker"

    The Regulations apply to "workers", the definition of which is very similar to that contained in s.230(3) of the ERA. Regulation 2(1) provides:

    "worker" means an individual who has entered into or works under (or, where employment has ceased, worked under) -

    (a)a contract of employment; or

    (b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or servicesfor another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

    and any reference to a worker's contract shall be construed accordingly.

    The definition therefore covers not only "employees" - those working under a contract of service or apprenticeship - but also a further range of individuals undertaking work under other forms of contract. However, the definition excludes self-employed people - that is, those whose work amounts to carrying out a business activity on their own account.

    A number of provisions in the Regulations apply specifically to "young workers". These are workers who are over the minimum school-leaving age but under the age of 18 (reg. 2(1)).

    The Regulations expressly apply to persons in Crown employment (including the armed forces), parliamentary staff and persons holding the office of constable or an appointment as a police cadet in the police service (regs. 34 to 37).

    The Regulations also specifically apply to agency workers who do not otherwise fall within the definition of "worker" (reg. 36). In the absence of a contract between the worker and either the agency or the agency's client, the person who is responsible for paying the worker is treated as his or her employer for the purposes of compliance with the Regulations. (This is usually the agency.)

    WEEKLY WORKING TIME

    Probably the most well-known provision in the Working Time Directive is the so-called "48-hour week". What the Directive and the Regulations in fact do is to set a 48-hour limit on the average amount of working time which can be done by a worker during a seven day period. To calculate the average hours worked, the Directive provides for a standard reference period of up to four months, which can be extended to six or 12 months under certain circumstances.

    Regulation 4(1) and (2) of the Regulations states the general rule 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", and that employers must "take all reasonable steps, in keeping with the need to protect the health and safety of workers" to ensure that workers do not exceed the limit.

    Workers with more than one job

    Significantly, reg. 4(1) and (2) is not restricted to work for any one employer. Rather, as a health and safety measure designed to protect workers from excessive working hours, it seems that the 48-hour limit applies to work for any employer.

    The DTI guide confirms this: "Employers are required to take all reasonable steps to ensure that workers do not exceed an average of 48 hours of weekly working time. Such steps would include enquiring whether the worker was working elsewhere (or requesting that they be notified on a worker getting other work) and, if they were, adjusting working arrangements accordingly." If a worker is working more than an average of 48 hours in total, one option would be for the employer to get the worker to enter into an individual "opt-out" agreement (see below) confirming his or her willingness to exceed the 48-hour limit.

    Calculating the average

    Regulation 4(3) to (7) sets out how the arrangements for calculating a worker's "average working time" will operate. Essentially, this is to be done by identifying the number of weeks in the reference period and the number of hours of "working time" worked by the worker in that period, and dividing the second by the first to produce an average figure.

    The Regulations take a standard reference period of 17 weeks. This was selected as the period of whole weeks that is as close to four months as possible. There are two situations where a longer reference period could apply:

  • a 26-week reference period applies in relation to workers who are excluded from the scope of certain provisions of the Regulations as a result of the derogations in reg. 21 (see below); or

  • the reference period can be up to 52 weeks if a collective or workforce agreement so provides in relation to particular workers or groups of workers "for objective or technical reasons or reasons concerning the organisation of work" (reg. 23).

    The reference period is extended where a worker will not have worked certain days during the reference period because he or she was on annual leave, sick leave or maternity leave, or because an individual "opt-out" agreement was in force. These are called "excluded days". The Regulations provide for the reference period to be extended by a number of working days equivalent to the number of excluded days.

    The calculation of a worker's average working time is therefore determined according to the following formula:

    Where:

    A is the total amount of hours worked during the reference period;

    B is the total number of hours worked, immediately after the reference period, during the number of working days equivalent to the number of "excluded days"; and

    C is the number of weeks in the reference period.

    The Government's April 1998 consultation paper gave the following example. If an employer planned that a worker was to work at 55 hours a week for the first nine weeks of the reference period and then 40 hours a week for the remaining eight weeks, this would be within the scope of the 48-hour limit:

    (9 x 55) + (8 x 40) = 815

    815 ÷ 17 = 47.9 hours a week average

    If the worker was off sick for two weeks in the latter period, the provisions on "excluded days" would require the hours worked in the two weeks immediately following the reference period to be taken into account. Therefore, if those were 40-hour weeks, the average would still be 47.9.

    A further example given in the DTI guide is that of a worker with a standard working week of 40 hours who does overtime of 12 hours a week for the first 10 weeks of the 17-week reference period. (The worker takes no leave during the reference period.) The total number of hours worked is therefore 800, comprising 17 weeks of 40 hours and 10 weeks of 12 hours' overtime:

    (17 x 40) + (10 x 12) = 800

    800 ÷17 = 47.1 hours a week average

    Therefore, the average limit of 48 hours has been complied with.

    Fixing the reference period

    There are two possibilities for determining the 17-week reference period for calculating a worker's average working time. Under reg. 4(3), a "relevant agreement" (see above) may provide for reference periods to be successive periods of 17 weeks. Secondly, in the absence of such an agreement, the reference period will be "any period of 17 weeks in the course of [the worker's] employment. In effect, this would create a continuously "rolling" reference period of 17 weeks prior to the current date.

    Where a worker has worked for the employer for less than 17 weeks, the 48-hour limit applies to the average weekly working time for whatever period has actually been worked (reg. 4(4)). This provision will be of particular importance to temporary workers on short-term contracts.

    Individual "opt-out" agreements

    The Working Time Directive permits the 48-hour limit to be disapplied by an agreement made between an individual worker and his or her employer (article 18(1)(b)). The Directive further provides, however, that before 23 November 2003 the European Council must re-examine this provision and decide on what action to take.

    Somewhat controversially, the Government has decided to cater for such individual "opt-out" agreements in the Regulations, subject to certain safeguards (as required by the Directive).

    Under reg. 5(1), a worker may agree in writing that the 48-hour limit on average working time does not apply in his or her case. Such an agreement may either be for a specified period or apply indefinitely, but the worker will always have the right to bring the agreement to an end. This can be done either by giving the notice specified in the agreement - which may not exceed three months - or, if there are no such notice terms, by giving at least seven days' notice in writing (reg. 5(2) and (3)).

    In addition, in order for the individual's agreement to be effective, the employer must:

  • maintain up-to-date records which: identify each of its workers who has agreed to disapply the 48-hour limit; set out the terms on which the worker agreed that the limit should not apply; and specify the number of hours worked by the worker during each reference period since the agreement came into effect (subject to a limit of two years); and

  • permit inspection of such records on request by any inspector appointed by the Health and Safety Executive or any other authority which is responsible for enforcement of the Regulations (see below); and provide such an inspector with such information as he or she may request regarding any worker who has agreed to opt out of the 48-hour limit.

    Effect of reduction in hours

    Where a worker refuses to opt out of the weekly working-time limit, this may necessitate a reduction in their working hours. A key issue here is the extent to which the employer is entitled to implement a reduction in the worker's pay to reflect the cut in hours. There are at least two potential obstacles to this course of action from a legal perspective. First, the pay-cut may amount to a breach of the worker's contract of employment, depending on its terms. For example, in the case of an hourly-paid worker, the employer would probably be entitled to pay him or her only for the hours worked following the reduction (eg 48 hours). In contrast, a worker paid by means of a monthly salary would probably be contractually entitled to insist on the full salary for working less hours in pursuance of their entitlement under the Regulations.

    The second potential difficulty for employers in this situation relates to the fact that the Regulations protect workers from being "subjected to a detriment" for asserting their rights and entitlements (see below). In what circumstances does a cut in pay consequent on a reduction in working hours amount to a "detriment"? Once again, the extent to which the employer is acting in breach of contract is probably an important factor. According to the DTI guide: "A reduction in pay commensurate with a reduction in working time is not necessarily detriment, but an excessive reduction in remuneration consequent upon a reduction in working time may be."

    Young workers' working time

    The Young Workers Directive provides for a maximum of eight hours' working time per day and 40 hours' working time per week for adolescent workers, and a basic prohibition on night work. However, the Government has chosen to take advantage of the derogation in article 17(1)(b) of the Directive, which permits the United Kingdom to refrain from implementing those provisions. This derogation for the UK lasts only until 22 June 2000, when the European Council will decide whether to extend it.

    In the meantime, the Government's view is that the working-time limits set out in the Working Time Directive "provide sufficient protection for all workers".

    NIGHT WORK

    The Working Time Directive requires the application of special working-time limits and various other measures to night workers. The implementing provisions are set out in regs. 6 and 7 of the Regulations, but we must first consider two more key definitions set out in reg. 2(1): "night time" and "night worker".

    "Night time" and "night worker"

    "Night time" is defined as a period of at least seven hours' duration which includes the period between midnight and 5 am. The seven-hour period is determined by a "relevant agreement" but, if there is no such agreement dealing with the matter, a "default" period of 11 pm to 6 pm applies.

    A "night worker" is defined as:

    (a)a worker who works at least three hours of his or her daily working time during night time "as a normal course"; or

    (b)a worker who is likely during night time to work such proportion of his or her annual working time as may be specified in a collective or workforce agreement.

    For the purposes of para. (a), a person will be taken to work hours "as a normal course" if he or she works such hours on the majority of working days. However, this is stated to be "without prejudice to the generality of that expression", implying that there might be other circumstances in which a worker can be regarded as working at least three hours at night "as a normal course".

    Length of night work

    Regulation 6(1) provides that "a night worker's normal hours of work in any reference period which is applicable in his case shall not exceed an average of 8 hours for each 24 hours", and reg. 6(2) requires an employer to "take all reasonable steps, in keeping with the need to protect the health and safety of workers" to ensure compliance with the limit in the case of each of its night workers.

    "Average normal hours"

    The standard 17-week reference period for calculating a night worker's "average normal hours" is the same as applies in relation to the 48-hour weekly working time limit. Accordingly, under reg. 6(3), a "relevant agreement" may provide for successive reference periods of 17 weeks; and, in the absence of such an agreement, the "default" position is a continuously rolling 17-week reference period.

    Regulation 6(5) sets out the following formula for calculating average normal hours of work for each 24 hours during a reference period:

       A   
    B - C

    Where:

    A is the normal number of working hours for the worker in question during the reference period;

    B is the number of days during the reference period; and

    C is the total number of hours during the reference period comprised in rest periods spent by a worker in pursuance of his or her entitlement under reg. 11 (see below), divided by 24.

    It must be stressed that it is a worker's normal hours of work that are limited under this provision. So, for example, the fact that a worker was in fact off sick during some part of the reference period is immaterial: it is the normal - not the actual - hours of work which count towards the limit.

    The DTI guide gives two examples:

    Example 1

    A night worker normally works four 12-hour shifts each week. With a 17-week reference period, A is 17 x (4 x 12) = 816 hours. There are 119 days in the reference period (B). And the number of weekly 24-hour rest periods to which the worker is entitled under reg. 11 is 24. Therefore, C is: (17 x 24) ÷ 24 = 17. The calculation is therefore:

    This works out at an average of eight hours in each 24-hour period, and so the limit has been observed.

       816    
    119 - 17

    Example 2

    A night worker normally works five days of 10 hours followed by three days of rest. The cycle starts at the beginning of the 17-week reference period (and so there are 15 cycles of work). The worker takes two weeks' leave and works six hours' overtime a week for three weeks. This does not affect the calculation of normal hours, as these factors fall outside the worker's set pattern of working time. The total number of normal hours of work for a 17-week reference period (A) would be 15 cycles of five 10-hour shifts: 15 x (5 x 10) = 750. There are 119 days in the reference period (B). And there are 17 weekly rest periods of 24 hours to which the worker is entitled. Therefore, C is: (17 x 24) ÷ 24 = 17. The calculation becomes:

       750    
    119 - 17

    This results in an average of 7.4 hours12 and so is below the eight-hour limit.

    Where a night worker has worked for the employer for less than 17 weeks, the average normal hours of work are calculated by reference to the period since he or she started work for the employer. The average normal working time must not exceed eight hours per 24-hour period.

    Special hazards/heavy strain

    More stringent rules apply in the case of work involving "special hazards or heavy physical or mental strain". Night workers who do such work are subject to an eight-hour limit on actual working time, in any 24-hour period during which they perform night work, without any reference period (reg. 6(7)).

    Work will be regarded as involving special hazards or heavy physical or mental strain if:

  • it is identified as such in a collective agreement or workforce agreement which takes account of the specific effects and hazards of night work; or

  • it is recognised as involving a significant risk to health and safety in a risk assessment carried out by the employer under the Management of Health and Safety at Work Regulations 199213.

    The Regulations attach no significance to how much of a night worker's work involves special hazards or heavy strain. It therefore seems that if any of a night worker's work is in that category, the absolute limit of no more than eight hours work in any 24-hour period applies.

    Health assessments

    The Management of Health and Safety at Work Regulations 1992 already require employers to assess the risks to the health and safety of employees, and to take into account their health and safety capabilities when assigning tasks to them. However, the Working Time Regulations establish new, specific requirements in relation to night workers. Regulation 7 provides that an employer must not assign a worker to become a night worker unless:

  • it has provided the worker with an opportunity to have a free "health assessment" (in the case of an adult worker) or a free "health and capacities assessment" (in the case of a young worker being asked to work between 10 pm and 6 am); or

  • the worker has had such an assessment before being assigned to night work on an earlier occasion, and the employer has no reason to believe that it is no longer valid.

    Furthermore, the employer will have a continuing duty to ensure that night workers have the opportunity for such assessments "at regular intervals of whatever duration may be appropriate in [the worker's] case".

    Health assessments must comply with medical confidentiality: they may not be disclosed to any person other than the worker concerned, unless he or she gives written consent. However, this does not prevent the disclosure of a simple statement that the worker is fit to perform night work.

    Transfer to day work

    Where a registered medical practitioner has advised an employer that a worker is suffering from health problems connected with the fact that he or she works at night, the worker is entitled to be transferred, wherever possible, to other suitable work which is not at night (reg. 7(6)).

    REST ENTITLEMENTS

    The Working Time Directive requires measures to provide workers with certain minimum entitlements to "daily rest", weekly rest periods and "breaks". The Young Workers Directive sets out similar (though more generous) entitlements for adolescent workers.

    In implementing these "entitlements", the Regulations in no sense compel workers to take advantage of them. While the employer must take necessary measures to ensure that its workers are able to take their rest entitlements, the workers are free to choose not to do so.

    Under reg. 2(1), "rest period" is defined as "a period which is not working time", other than a rest break or leave to which the worker is entitled under the Regulations.

    Daily rest

    Under the Regulations, an adult worker is entitled to a rest period of at least 11 consecutive hours in each 24-hour period during which he or she works for the employer (reg. 10(1)). For young workers, the entitlement is to 12 hours' consecutive rest for each such period (reg. 10(2)). The 11 hours (or 12, as the case may be), so long as they are consecutive, may straddle two calendar days.

    In the case of young workers, the 12-hour minimum rest period "may be interrupted in the case of activities involving periods of work that are split up over the day or of short duration" (reg. 10(3) - this arrangement is permitted by the Young Workers Directive).

    Weekly rest period

    Regulation 11 provides that adult workers are entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period. This is in addition to the 11 hours' daily rest entitlement (see above), except where "objective or technical reasons or reasons concerning the organisation of work" justify incorporating all or part of the daily entitlement into the weekly rest period.

    If the employer so determines, the weekly reference period can be averaged over a reference period of 14 days. There are two options from which the employer can choose:

  • two uninterrupted rest periods each of not less than 24 hours in each 14-day period; or

  • one uninterrupted rest period of not less than 48 hours in each 14-day period.

    For the purposes of this entitlement, the seven-day period (or 14-day period as the case may be) starts immediately after midnight on Sunday unless a "relevant agreement" has been made which provides otherwise.

    The Regulations do not require that Sunday be included as part of the minimum weekly rest period. (In United Kingdom v Council of the European Union5, the European Court of Justice annulled the sentence in the Working Time Directive including that requirement - the only part of the UK's challenge to the Directive that was successful.)

    Young workers

    Young workers are entitled to a rest period of 48 hours in each period of seven days during which work is done for the employer (reg. 11(3)). There is no longer period over which the weekly rest entitlement can be averaged. However, the minimum weekly rest period may be:

  • "interrupted in the case of activities involving periods of work that are split up over the day or are of short duration"; and

  • reduced to not less than 36 hours "where this is justified by technical or organisational reasons".

    Rest breaks

    Under reg. 12, adult workers are entitled to a daily rest break when their daily working time is more than six hours. They are entitled to spend the break away from their workstation (if they have one).

    The details of the rest break, including its duration and the terms on which it is granted, may be set by a collective or workforce agreement. But in the absence of such an agreement, the break must be an uninterrupted period of not less than 20 minutes.

    The Government believes that it is implicit in the notion of a "break" that it cannot be taken at the start or end of a period of working time14. It follows that a break cannot overlap with the separate and additional entitlement to a daily rest period.

    Again, the entitlement for young workers is more generous. Where a young worker's daily working time is more than four-and-a-half hours, he or she is entitled to a rest break of at least 30 minutes, "which shall be consecutive if possible", and spent away from the worker's workstation if he or she has one. Other than in very special circumstances of force majeure (see below), this entitlement cannot be varied by any kind of agreement.

    If a young worker is employed by more than one employer, the number of hours worked for each employer is to be aggregated for the purposes of establishing whether they are entitled to a rest break.

    The Regulations do not specify that rest breaks must be paid: "Payment is a matter for workers' contracts with their employer"15.

    Pattern of work

    Regulation 8 provides: "Where the pattern according to which an employer organises work is such as to put the health and safety of a worker employed by him at risk, in particular because the work is monotonous or the work-rate is predetermined, the employer shall ensure that the worker is given adequate rest breaks."

    The purpose of reg. 8 is to implement article 13 of the Working Time Directive, a tortuously-worded provision the intention of which is "unclear", according to the Government's April 1998 consultation paper. Article 13 provides:

    Member states shall take the measures necessary to ensure that an employer who intends to organise work according to a certain pattern takes account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time.

    The Government has clearly taken a narrow view of article 13, translating it merely as a requirement relating to rest breaks for workers in particular circumstances. It considers that reg. 8 might require employers to consider awarding certain workers more frequent, shorter breaks as opposed to one longer, continuous break (subject, of course to any rest-break entitlement they might have under reg. 12).

    PAID ANNUAL LEAVE

    Regulation 13 provides that - subject to a 13-week qualifying period of continuous employment - a worker is entitled to leave of three weeks in each "leave year". On and after 23 November 1999, the entitlement will rise to four weeks. (Regulation 13(2) contains transitional provisions, covering the situation where a worker's leave year falls either side of 23 November 1999. In that case, the worker's leave entitlement will be three weeks plus a portion of a further week which is proportionate to the period of the leave year falling after 23 November 1999.)

    For the purposes of reg. 13, a worker is treated as having been "continuously employed for 13 weeks" if his or her relations with the employer have been governed by a contract during the whole or part of each of those weeks. (The Regulations do not, therefore, apply the rules on continuity of employment contained in the ERA.)

    Although not made expressly clear in the Regulations themselves, the intention is that part-time workers will have an appropriate pro rata leave entitlement. So, for example, a worker working three days a week would be entitled to nine days' annual leave (and 12 days from 23 November 1999).

    Where a worker is paid under his or her contract for bank and public holidays, it seems that these will count towards their entitlement to annual leave under the Regulations. As the DTI guide points out, there is no statutory entitlement to bank and public holidays in the UK: they are simply days on which workers may receive leave under the terms of their contracts. Accordingly, as with other contractual leave, this can be used to discharge an employer's responsibility for providing leave under reg. 13.

    A worker's "leave year" for these purposes begins on such date as may be provided for in a "relevant agreement". This would cover the situation, for example, where the leave year is specified in a worker's contract of employment. In the absence of such an agreement, the following "default" arrangements apply:

  • if the worker started work before the Regulations come into force, his or her leave year will start on the Regulations' commencement date (and subsequent anniversaries thereof);

  • if the worker starts work after the date on which the Regulations come into force, the leave year will start on the date of commencement of employment (and subsequent anniversaries thereof).

    Regulation 13(5) covers the situation where the start of the leave year is specified in a relevant agreement, and a worker's employment begins during the course of the leave year. In these circumstances, the worker's annual leave entitlement is reduced so as to be proportionate to the amount of the leave year actually worked. The proportion is determined in days, and any fraction of a day should be treated as a whole day (reg. 13(6)).

    Leave may be taken in instalments, but may be taken only in the leave year in respect of which it is due (reg. 13(9)(a)). However, there is nothing to prevent employers and workers agreeing enhanced contractual paid leave to take account of any leave entitlement due but not taken for a particular year.

    Payment in lieu

    As required by the Working Time Directive, the Regulations specifically provide that a worker's leave entitlement may not be replaced by a payment in lieu - except where his or her employment is terminated (reg. 13(9)(b)).

    Where a worker's employment is terminated during the course of the leave year, and the proportion of leave taken by the worker is less than the proportion of the leave year that has expired, the employer must make a payment in lieu of the outstanding leave (reg. 14). Unless there is a "relevant agreement" specifying the sum due in these circumstances, it is to be determined by the following formula:

    (A x B) - C

    Where:

    A is the period of leave to which the worker is entitled under reg. 13;

    B is the proportion of the worker's leave year which expired before the effective date of termination; and

    C is the period of leave taken by the worker between the start of the leave year and the effective date of termination.

    The DTI guide gives the example of a worker who works five days a week and leaves his employer six months into the leave year, at which point he has taken only three days' leave. The calculation would be:

    (15 x 0.5) - 3 = 4.5

    The worker would therefore be entitled to four-and-a-half days' pay from the employer.

    Conversely, reg. 14(4) provides for the situation where a worker's employment ends, and the proportion of leave he or she has taken exceeds the proportion of the leave year which has expired. A "relevant agreement" may provide for the worker to compensate the employer for the excess holiday taken, "whether by a payment, by undertaking additional work or otherwise".

    Notice requirements

    Regulation 15 contains various conditions with regard to workers giving notice to their employer of intention to take statutory leave to their employer, and employers giving notice to workers of a requirement to take or not to take leave on particular dates. However, these rules "may be varied or excluded by a relevant agreement" (including, for example, a contract of employment).

    Subject to such exclusion or variation:

  • an employer can require a worker to take all or part of the leave to which he or she is entitled under reg. 13 on particular days (or part-days), provided the worker is given prior notice at least twice as long as the number of days' leave to be taken;

  • a worker is required to give notice to the employer specifying the days and/or part-days on which he or she wishes to take leave. Again, the notice period should be at least twice as long as the number of days' leave to be taken. (So, for example, a worker intending to take 10 days' leave would have to give 20 days' notice.)

    Where a worker has served notice of intention to take leave, the employer may issue a counter-notice requiring him or her not to take such leave on particular days (or part-days). It appears from the wording of reg. 15 that the counter-notice is required to be only as long as the number of days (or part-days) on which the employer does not want the worker to take leave. So, for example, the employer has to give only one day's notice to the worker if there is a particular day of the leave period on which it wants him or her to attend for work.

    The purpose of the counter-notice provisions is to enable employers to avoid operational difficulties where, for example, a number of workers in a particular team give notice to take leave on the same day. However, there could potentially be harsh results. To take an extreme example: if a worker is in the middle of a two-week holiday abroad, it appears that the employer is entitled to serve only one day's notice on the worker requiring him or her to break the holiday in order to attend for work on a particular day.

    Determining due pay

    Workers will be entitled to be paid in respect of any period taken as annual leave under the Regulations at the rate of a "week's pay" in respect of each week of leave, calculated in accordance with ss.221 to 224 of the ERA (reg. 16). (Note, however, that the £220 maximum on a week's pay will not apply for these purposes.)

    Any contractual remuneration paid to a worker in respect of a period of leave will go towards discharging any liability of the employer to make payment under the Regulations in respect of the same period (and vice versa).

    EXCLUSIONS AND DEROGATIONS

    The broad range of exclusions and derogations set out in the Regulations significantly restrict their potential scope. "Derogations" are provisions in the Working Time Directive and the Young Workers Directive which allow member states to provide by law for certain entitlements and limits to be disapplied, or operate differently in respect of particular workers in certain circumstances.

    The Government's general approach is that "there is no reason to deny either businesses or workers the opportunity of taking up derogations which the Directives allow so as to preserve flexibilities and freedom to organise working time as they wish."16 There are, however, exceptions where the Government has decided not to take up available derogations - in particular, many of those in the Young Workers Directive.

    Note also that some entitlements (such as paid annual leave) are not subject to derogation of any kind; and in many cases derogations cannot be taken up without providing the workers concerned with compensatory rest for any "extra" work they are required to perform because of the derogation.

    Specific exclusions

    In accordance with article 1(3) of the Working Time Directive, workers carrying out certain activities or employed in certain sectors are completely excluded from the various rules and entitlements set out in the Regulations, other than those specific to young workers. Under reg. 18, the exclusion applies:

  • to certain identified "sectors of activity": air, rail, road, sea, inland waterway and lake transport; sea fishing; and other work at sea;

  • to "the activities of doctors in training"; and

  • where characteristics peculiar to certain specified services - such as the armed forces and the police - "inevitably conflict" with the provisions of the Regulations.

    Scope of transport exclusion

    It will ultimately be for the tribunals and courts to determine whether a particular worker is employed in an excluded sector of activity. The legitimate scope of the "transport" exclusion is likely to give rise to particular problems, which are to some extent addressed in the DTI guide.

    The guide suggests that the mere location of the work - for example, a port, railway station, airport or road-transport terminal - will not necessarily mean that those doing it are excluded: "Where workers are directly involved in the operation of the sector, such as baggage handlers and signal and maintenance staff, they are more likely to be excluded from the Regulations, but where they are not (for example construction workers at an airport) the exclusion is not likely to apply." The guide also points out that the movement of goods or people to or from a mode of transport (for example, in docks or harbours) is not necessarily excluded. The same probably goes for the transportation of goods or people within the confines of buildings or premises (for example, the movement of goods in warehouses and storage depots).

    EC proposals for excluded sectors

    In July 1997, the European Commission published a White Paper discussing the possible options for extending the Working Time Directive to the excluded sectors and activities, and this was followed by a second consultation paper in March 199817. The Commission has been seeking to promote a negotiated settlement between the European social partners, a result which was achieved in the maritime and rail sectors18. However, negotiations failed to reach a successful conclusion in any other sectors, and on 18 November 1998 the Commission issued a proposal for a Directive amending the Working Time Directive to cover the sectors and activities that are currently excluded from its scope19. The Commission is also proposing a separate Directive specifically covering the working time of mobile workers in the road transport sector, and a Directive based on the recent social partners' agreement in the maritime transport sector. These various proposals will be analysed more fully in a future issue of IRLB.

    Domestic service

    The following provisions of the Regulations do not apply in relation to a worker employed as a domestic servant in a private household: maximum weekly working time (reg. 4); length of night work and health assessments for night workers (regs. 6 and 7); and pattern of work (reg. 8).

    Unmeasured working time

    By virtue of reg. 20, certain provisions of the Regulations do not apply in relation to a worker "where, on account of the specific characteristics of the activity in question in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself ..."

    The provisions of the Regulations potentially disapplied are: maximum weekly working time (reg. 4); length of night work (reg. 6); and, in relation to adult workers only, minimum daily and weekly rest periods and breaks (regs. 10, 11 and 12).

    Regulation 20 sets out three examples, taken directly from article 17 of the Working Time Directive, where this derogation may apply:

  • managing executives or other persons with autonomous decision-making powers;

  • family workers; or

  • workers officiating at religious ceremonies in churches and religious communities.

    This exception is likely to be construed narrowly and restricted to those workers who can truly control their own hours. The DTI guide states that reg. 20 essentially applies to "workers who have complete control over the hours they work and whose time is not monitored or determined by their employer. Such a situation may occur if a worker can decide when the work is to be done, or may adjust the time worked as they see fit. An indicator may be if the worker has discretion over whether to work or not on a given day without needing to consult their employer."

    Other special cases

    Regulation 21 sets out a wide range of circumstances in which certain of the entitlements and limits under the Regulations are excluded or modified.

    The provisions of the Regulations potentially disapplied by reg. 21 are: length of night work (reg. 6); and, in relation to adult workers only, minimum daily and weekly rest periods and breaks (regs. 10, 11 and 12). (In addition, as we have already noted at p.5 above, the reference period for calculating average weekly working time under reg. 4 is 26 weeks, rather than 17 weeks, for workers falling within reg. 21.)

    Regulation 21 applies to a worker:

  • "where the worker's activities are such that his place of work and place of residence are distant from one another, or his different places of work are distant from one another" (according to the DTI guide, this "may apply to workers where, because of the distance from home, it is desirable for them to work longer hours for a short period to complete the task more quickly, or where continual changes in the location of the work make it impractical to set a pattern of work");

  • where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;

  • where the worker's activities involve the need for continuity of service or production, as may be the case in relation to:

    -services relating to the reception, treatment or care provided by hospitals or similar establishments, residential institutions and prisons;

    -work at docks or airports;

    -press, radio, television, cinematographic production, postal and telecommunications services and civil protection services;

    -gas, water and electricity production, transmission and distribution, household refuse collection and incineration;

    -industries in which work cannot be interrupted on technical grounds;

    -research and development activities; and

    -agriculture;

  • where there is "a foreseeable surge of activity", as may be the case in relation to:

    -agriculture;

    -tourism; and

    -postal services;

  • where the worker's activities are affected by:

    -an occurrence due to unusual and unforeseeable circumstances beyond the employer's control;

    -exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer; or

    -an accident or imminent risk of accident.

    Compensatory rest

    There is an important limitation on the reg. 21 derogations set out above. By virtue of reg. 24, if reg. 21 results in a worker being required by his or her employer to work during a period which would otherwise be a rest period or rest break:

  • the employer must allow the worker wherever possible to take "an equivalent period of compensatory rest"; and

  • in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, the employer must afford the worker "such protection as may be appropriate in order to safeguard the worker's health and safety".

    The DTI guide states: "Compensatory rest should be provided within a reasonable time from when the entitlement to rest was modified - this should usually be possible within a couple of weeks for daily rest and a couple of months for weekly rest."

    Shift workers

    The "compensatory rest" provisions also apply to the derogation in reg. 22 in respect of shift workers. This provides that the rights to a daily and weekly rest period under regs. 10 and 11 do not apply:

  • to an adult shift worker when he or she changes shift and cannot take the rest period in question between the end of one shift and the start of the next one; or

  • to an adult worker engaged in activities involving periods of work split up over the day, as may be the case for cleaning staff.

    A "shift worker" means any worker whose work schedule is part of "shift work", which is defined as: "any method of organising work in shifts whereby workers succeed each other at the same workstations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks."

    Collective and workforce agreements

    We have already noted a number of areas where the Regulations provide for agreements between employers and workers to specify how the working-time rules are to apply in practice. Regulation 23 further provides that a collective or workforce agreement - but not any other type of "relevant agreement" - can modify or exclude the application of various provisions of the Regulations in relation to particular workers or groups of such workers.

    The provisions which may be so modified or excluded are: length of night work (reg. 6); and, in relation to adult workers only, minimum daily and weekly rest periods and breaks (regs. 10, 11 and 12). Once again, however, the requirements as to "equivalent compensatory rest" in reg. 24 apply.

    In addition, as noted above, a collective or workforce agreement may in certain circumstances substitute a 52-week reference period for the standard 17-week period for averaging weekly working time under reg. 4.

    A collective agreement in existence before the Regulations came into force is capable of securing a derogation provided that its terms satisfy the conditions set out in reg. 23 for the workers concerned. The same would apply to a "workforce agreement" which satisfies the required procedures (see the box on p.4) but was made before 1 October 1998.

    Derogations for young workers

    As we have seen, the rest entitlements applicable specifically to young workers under regs. 10, 11 and 12 of the Regulations are not subject to any of the derogations discussed above. However, the Regulations do make provision for some of the derogations allowed by the Young Workers Directive. Apart from the derogations taken up in respect of daily and weekly working time and night work (see above), the most significant is reg. 23, a tightly-constrained derogation relating to force majeure.

    Force majeure

    Regulation 27 disapplies a young worker's daily rest and rest-break entitlements under regs. 10 and 12 (but not the weekly rest period entitlement under reg. 11), where the employer requires him or her to undertake work which no adult worker is available to perform and which:

  • is occasioned by either:

    -an occurrence due to unusual and unforeseeable circumstances, beyond the employer's control, or

    -exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer;

  • is of a temporary nature; and

  • must be performed immediately.

    Any young worker accordingly required to work during a period which would otherwise be a rest period or rest break must be allowed to take an equivalent period of compensatory rest within the following three weeks.

    Other derogations

    The Regulations take up only two further derogations in respect of young workers:

  • the various rest entitlements under regs. 10, 11 and 12 and the right to an "assessment of health and capacities" before being assigned to night work under reg. 7 do not apply to certain young workers employed on ships (reg. 26); and

  • the daily and weekly rest entitlements (regs. 10 and 11) do not apply in relation to young workers in the armed forces, subject to the requirement to allow "an appropriate period of compensatory rest" (reg. 25(2) and (3)).

    ENFORCEMENT AND REMEDIES

    The Regulations provide for various enforcement mechanisms. Broadly speaking, where a worker is given an "entitlement" under the Regulations, the remedy for an employer's failure to provide that entitlement will be by way of an individual complaint to an employment tribunal.

    In contrast, the various mandatory "limits" on working time and certain other obligations under the Regulations will be enforced by sanctions imposed by the health and safety authorities (the Health and Safety Executive and local authorities). However, the Regulations additionally create rights to bring a tribunal complaint of detrimental treatment or unfair dismissal on grounds of, amongst other things, refusing to work in breach of a working-time limit.

    Complaints to tribunals

    Regulation 30 provides that a worker may present a complaint to an employment tribunal that his or her employer:

  • has refused the exercise of an entitlement under the Regulations in respect of daily or weekly rest or rest breaks (regs. 10, 11 and 12) or annual leave (reg. 13);

  • has failed to provide a period of "compensatory rest" where required (regs. 24, 27 and 25(2) and (3)); or

  • has failed to pay the due amount for a period taken as statutory annual leave, or to make a due payment in lieu of untaken leave on termination of employment.

    Complaints must be brought within three months of the act or omission complained of, unless the tribunal considers that it was not reasonably practicable to bring the complaint within that period, and conciliation by ACAS is available

    Where a tribunal upholds a complaint under reg. 30, it must make a declaration to that effect, and may award compensation. The amount of compensation is such as the tribunal considers "just and equitable in all the circumstances", having regard to the employer's default in refusing to permit the exercise of the worker's entitlement, and any loss sustained by the worker as a consequence of that default. However, where the complaint is of failure to provide due pay for a period of annual leave, or pay in lieu of untaken leave on termination of employment, the tribunal must order payment of the due amount by the employer.

    Detrimental treatment

    The Regulations insert a new s.45A into the ERA, adding a further collection of grounds on which workers are protected against any "detriment" imposed by their employer. "Detriment" can cover a wide range of discriminatory actions, such as denial of promotion, facilities or training opportunities that the employer would otherwise have offered or made available. The specified grounds are:

  • refusing (or proposing to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of its obligations under the Working Time Regulations;

  • refusing (or proposing to refuse) to forgo a right conferred by the Regulations;

  • refusing to sign a workforce agreement or to enter into, or agree to vary or extend, any other agreement provided for in the Regulations;

  • being a candidate for election as a workforce representative for the purposes of the Regulations or, having been elected, performing (or proposing to perform) any functions or activities as such;

  • bringing proceedings against the employer to enforce a right conferred by the Regulations; or

  • alleging in good faith that the employer has infringed such a right.

    So, for example, a worker will be protected against detrimental treatment because of refusing to exceed the limit on average weekly working time under reg. 4, or refusing to sign an individual agreement "opting out" of that limit under reg. 5.

    The procedural arrangements for other categories of "detrimental treatment" claims (ss.48 and 49 of the ERA) will apply. In particular, on upholding a complaint, a tribunal may award compensation on a "just and equitable" basis not subject to any statutory maximum. The only exception to this is where the "detriment" alleged by the worker is dismissal, in which case the compensation limits applicable to an unfair dismissal claim by an employee would apply.

    Unfair dismissal

    The Regulations will also insert a new s.101A into the ERA, adding to the existing categories of "automatically unfair" dismissals, and will amend the provisions on unfair dismissal for asserting a statutory right under s.104 of the ERA. However, these protections only apply to "employees" as defined in the ERA, rather than the broader category of workers.

    The upshot is that dismissal of an employee will be treated as unfair, irrespective of his or her age or length of service, if the reason or principal reason is one of the grounds set out above under "detrimental treatment". Selection for redundancy on the same grounds will also be automatically unfair. The compensation regime and statutory limits under the ERA will apply (including, in appropriate cases, the potential for special awards where re-employment is sought or ordered but not complied with).

    Health and safety enforcement

    A number of the obligations under the Regulations - such as the limits on working time and the provisions relating to night work - will be enforced in the same way as existing health and safety legislation, by HSE inspectors and local authority environmental health officers.

    The Regulations make it an offence for an employer not to comply with any of the "relevant requirements", defined as:

  • the duty to take "all reasonable steps" to ensure compliance with the weekly working-time and night-work limits in the case of each of the employer's workers (regs. 4(2) and 6(2));

  • the requirements as to health assessments and transfer of night workers to day work (reg. 7);

  • the duty with regard to "pattern of work" (reg. 8); and

  • the requirement to keep adequate records (reg. 9).

    It is further provided, in effect, that relevant provisions of the Health and Safety at Work etc Act 1974 apply in respect of how enforcement action can be taken to prevent and punish any such offence, and the penalties that could be imposed on conviction. The latter would include fines and possible imprisonment (for contravention of a requirement imposed by an improvement notice).

    The Government believes that the health and safety authorities should undertake their functions in respect of the Regulations in the same way as they carry out their current work, by concentrating their attention and resources on the most serious risks and hazards.20

    The Government has also warned the enforcing authorities against getting "drawn into disputes primarily about industrial relations rather than health and safety issues", highlighting the availability of assistance from ACAS in respect of the former21.

    Civil liability

    The Regulations do not exclude an employer's civil liability in respect of the application of the various working-time limits. Accordingly, it will be possible for a worker to sue for damages if quantifiable loss is incurred because of being required to work beyond any such limit - or, for example, because of an employer's denial of a night worker's entitlement to health assessments.

    Records

    The Regulations introduce an obligation on employers to keep records that are adequate to show whether the limits on weekly working time and night work, and the rules on health assessments for night workers, are being complied with in the case of each worker to whom they apply (reg. 9). Such records must be retained for two years from the date on which they were made.

    The record-keeping requirements under reg. 9 do not apply in relation to workers serving in the armed forces (reg. 25(1)).

    In addition to employers' general obligations under reg. 9, there are specific record-keeping requirements in relation to individual workers' agreements opting out of the 48-hour weekly working limit (see above p.6).

    1 SI 1998/1833.

    2 Equivalent Regulations applicable to Northern Ireland came into force on 23 November 1998: the Working Time Regulations (Northern Ireland) 1998 (SR No.386).

    3 "Measures to implement provisions of the EC Directives on the organisation of working time ('the Working Time Directive') and the protection of young people at work ('the Young Workers Directive'): public consultation", Department of Trade and Industry, April 1998.

    4 "A guide to the Working Time Regulations", Department of Trade and Industry, September 1998.

    5 [1997] IRLR 30.

    6 "A consultation document on measures to implement provisions of the EC Directive on the organisation of working time ('the Working Time Directive')", Department of Trade and Industry, December 1996.

    7 SI 1997/135.

    8 SI 1998/276.

    9 SI 1998/2411.

    10 According to the DTI guide, "relevant training" includes those in National Traineeships or participating in the New Deal who are not employed.

    11 SI 1996/1513.

    12 The DTI guide incorrectly states that the result of the calculation is 6.7 hours.

    13 SI 1992/2792.

    14 See the DTI's April 1998 consultation paper, p.34.

    15 DTI guide, para. 6.1.2.

    16 DTI consultation paper, April 1998, p.43.

    17 See European Industrial Relations Review, no.292, May 1998, p.3 (also published by IRS).

    18 See European Industrial Relations Review, no.298, November 1998, pp.14-16.

    19 See European Industrial Relations Review, no.299, December 1998, pp.2-3.

    20 DTI consultation paper, April 1998, pp.52-53.

    21 Ibid, p.52.

    The new law on working time: key points

  • The Working Time Regulations 1998 contain measures to implement the provisions of the 1993 EU Working Time Directive and the working-time restrictions on "adolescent" workers contained in the 1994 EU Young Workers Directive. The Regulations came into force on 1 October 1998.

  • The Regulations apply to "workers" - that is, individuals working under either a contract of employment or a contract personally to do or perform work or services, but excluding self-employed people carrying out a business activity on their own account. Some provisions apply specifically to "young workers" (workers over minimum school-leaving age but under 18).

  • The Regulations introduce a range of significant new rights and entitlements, including:

    -a limit of 48 hours on average weekly working time (which an individual worker may voluntarily agree to disapply);

    -a minimum of three weeks' paid annual leave (rising to four weeks in November 1999), subject to a 13-week qualifying period;

    -entitlements to: a daily rest period of 11 consecutive hours; a weekly rest period of 24 hours; and a daily 20-minute rest period where the working day is longer than six hours (there are enhanced rest entitlements for young workers);

    -a limit of an average of eight hours' work in each 24-hour period for night workers; and an actual limit of eight hours in each 24-hour period for night workers whose work involves "special hazards or heavy physical or mental strain";

    -the right to a "health assessment" (or a "health and capacities assessment" in the case of young workers) before being required to perform night work and at regular intervals thereafter.

  • There is significant scope in the Regulations for employers and workers to enter into agreements on how the working-time rules will apply in their own particular circumstances. Collective agreements can be made with an independent trade union; and "workforce agreements" can be made with workers who are not covered by collective bargaining.

  • Certain activities or sectors of activity are currently excluded from the Regulations, including transport, sea fishing, other work at sea and doctors in training. The Regulations also take up most of the "derogations" set out in the Directives - that is, provisions which allow member states to provide for certain of the limits and entitlements to be disapplied, or operate differently, in respect of particular workers in specified circumstances.

  • Broadly speaking, workers' "entitlements" under the Regulations (such as rest periods and paid annual leave) will be enforced by individual complaint to an employment tribunal; whereas the mandatory "limits" on working time (such as the weekly working time and night-work limits) will be enforced by the health and safety authorities (the Health and Safety Executive and local authorities). However, workers have protection against detrimental treatment or unfair dismissal for, amongst other things, refusing to work in breach of an applicable working-time limit.

  • Employers are required to keep adequate records, going back two years, to show that the working-time limits are being complied with.

    Workforce agreements: the legal requirements

    An agreement is a "workforce agreement" for the purposes of the Regulations if:

  • it is in writing;

  • before it was made available for signature, the employer provided copies of the text of the agreement to workers to whom it was intended to apply, together with such guidance as they might reasonably require in order to understand it fully;

  • it applies either:

    -to all "relevant members of the workforce"22; or

    -to all of the relevant members of the workforce who belong to a "particular group"23;

  • it is signed, before it comes into effect:

    -in the case of an agreement applying to all relevant members of the workforce, by the elected representatives of the workforce24; or

    -in the case of an agreement applying to a particular group, by the elected representatives of the group24; or

    -if the employer employs 20 or fewer workers, either by the appropriate representatives of the workforce24 or by a majority of the workers employed by the employer; and

  • it has effect for a specified period not exceeding five years.

    Election of workforce representatives

    In the case of an agreement concluded with elected representatives of relevant members of the workforce, the following requirements must be satisfied:

  • the number of representatives to be elected is determined by the employer;

  • the candidates for election as workforce representatives are relevant members of the workforce, and the candidates for election as representatives of a particular group are members of the group;

  • no worker who is eligible to be a candidate is unreasonably excluded from standing as a candidate;

  • all the relevant members of the workforce are entitled to vote for representatives of the workforce, and all the members of a particular group are entitled to vote for representatives of the group;

  • the workers entitled to vote may vote for as many candidates as there are representatives to be elected; and

  • the election is conducted so as to secure that:

    -so far as is reasonably practicable, those voting do so in secret; and

    -the votes given at the election are fairly and accurately counted.

    22 "Relevant members of the workforce" are defined as "all of the workers employed by a particular employer, excluding any worker whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement".

    23 A "particular group" is defined for these purposes as "a group of the relevant members of a workforce who undertake a particular function, work at a particular workplace or belong to a particular department or unit within their employer's business".

    24 Excluding any representative who was not a relevant member of the workforce on the date on which the agreement was first made available for signature.