PREVIOUS
SPEAKERS:
Catherine
Barnard
Trinity College, Cambridge
Back to list of
speakers
Title:
Facing up to Working Time
Working Time Regulations
- Working Time Directive 93/104
- due to be implemented by 23 November 1996
- UK implemented it 1 October 1998: SI 1988/1833
- Amendment Regs: SI 1999/3372
Worker I
- (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 services for 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".
Worker II
"a worker will be someone to whom an employer has a duty to provide work, who controls when and how it is done, supplies the tools and other equipment and pays tax and national insurance contributions".
Worker III
- agency workers
- freelancers
- casual workers
- trainees - Edmunds v Lawson QC [2000] IRLR 18
- domestic servants
- self employed – no
Scope of the Directive
Applies to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure etc).
Total exclusions
- air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea
- the activities of doctors in training
- certain specific activities such as the armed forces or to the police, or to certain specific activities in the civil protection services
Key features of the Working Time Regs I: Entitlements
- minimum daily rest period of 11 consecutive hours in each 24 hour period (Reg.10);
- minimum uninterrupted rest period of 24 hours every week. (Reg 11);
- in-work rest break of at least 20 minutes where the working day is longer than 6 hours (Reg.12);
Key features of the Working Time Regs I: Entitlements
Paid annual leave of now 4 weeks (Regs 13 and 16). The entitlement does not arise until a worker has been continuously employed for 13 weeks (Reg 13(7)). Notice provisions also apply (Reg 15).
Key features of the Working Time Regulations II: Limits
- weekly working
of 48 hours on average, including overtime, over a reference period
of (usually) 17 weeks (Reg 4);
- night work of an average of 8 hours in any 24 hour period over a reference period of 17 weeks (Reg 6). No averaging in the case of work which involves "special hazards or heavy physical or mental strain" (Reg 6(7)).
Key features of the Working Time Regulations II: Limits
- employers must provide night workers with free and confidential health assessment (Reg 7)
- night workers assessed as suffering health problems connected with night work should be transferred, where possible, to suitable day work (Reg 7).
The principle of humanisation of work
The general
principle of adapting work to the worker, with a view, in particular,
to alleviating monotonous work and work at a pre-determined work rate,
depending on the type of activity, and of health and safety requirements,
especially as regards breaks during working time.
Reg 8
Limits
and Entitlements I
- Limits: workers cannot exceed those limits even if they want to (subject to the application of the derogations and the contracting out clause) and employers must not allow workers to exceed those limits.
- Criminal sanctions.
Limits and Entitlements II
- Entitlements: the employer cannot lawfully require the worker to work during any such rest period but if workers choose to work in a way which means foregoing a rest period this is probably not unlawful.
- Civil action: Barber v RJB Mining [1999] IRLR 308.
Excluded sectors
- Horizontal directive
- Sectoral specific directives
- Seafarers
Exceptions I
- A.
Unmeasured working time (independent workers) (Reg 20)
Where, on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself, as may be the case for: - managing executives and autonomous decision makers
- family workers
- "religious" workers
Regs 4(1) and (2), 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply.
SI 1999/3372
Where part of the working time of a worker is measured or predetermined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself, regulations 4(1) and (2) and 6(1), (2) and (7) shall apply only to so much of his work as is measured or predetermined or cannot be determined by the worker himself.
Examples
- A is paid by the hour; occasionally works overtime for which payment is made - amendment n/a because work is measured.
- B’s contract provides that she work 42 hours p.w, but she regularly works longer because the volume of work is greater than could be done in the time; C works to deadlines; C cannot affect the volume of the work. Extra hours do not fall within the amendment because she is required to do the work.
- C is keen to be promoted and is working longer hours. If C is working these extra hours because he thinks it will get him promotion, then the additional time will fall within the scope of the amendment as he is choosing to work the additional time. However, if it is established that to get promoted, one must work longer hours, the additional time would not fall within the scope of the amendment because it is an implicit requirement to work longer hours.
Exceptions II
- B. Other special circumstances (those connected to industries requiring 24 hour cover) (Reg 21)
- eg security, hospitals, press, services
- foreseeable surge of activity eg tourism
- worker’s home and residence are distant
- dangerous situations, accidents
- Regs 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply.
Exceptions III
- C.
Shift Workers (Reg 22)
Reg 10(1), 11 (1) and (2) do not apply.
Exceptions IV
- D.
Collective agreements/workforce agreements (Reg 23)
Modify or exclude Regs 6(1) to (3) and (7), 10(1), 11(1) and (2) and 12(1), and for OTOWO reasons Regs 4(3) & (4).
Agreements
"collective
agreements and agreements between the two sides of industry"
- collective agreements
- workforce agreements
- relevant agreements
Workforce agreements
"An agreement between an employer and workers employed by him or their representatives in respect of which the conditions set out in Schedule 1 are satisfied"
Workforce agreements: requirements for validity
- be in writing;
- have been circulated in draft to all workers to whom it applies together with guidance to assist their understanding of it;
- be signed,
before it comes into effect, either
- by all the representatives of the members of the workforce or group of workers; or
- if there are 20 workers or fewer employed by a company, either by all the representatives of the workforce or by a majority of the workforce; - have effect for no more than five years.
Relevant agreements
- a workforce agreement;
- any provision of a collective agreement which forms part of a contract between him and his employer;
- or any other agreement in writing which is legally enforceable as between the worker and the employer.
Working Time I
4. (1) [Subject to regulation 5], Unless his employer has first obtained the worker’s agreement in writing to perform such work, 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.
Working Time II
(2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in paragraph (1) is complied with in the case of each worker employed by him in relation to whom it applies and shall keep uptodate records of all workers who carry out work to which it does not apply by reason of the fact that the employer has obtained the worker’s agreement as mentioned in para.1.
Working Time III: Definition of working time
- Directive: Art 2(1) - "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 practices".
- On-call workers? Case C-303/98 SIMAP
- Reg 2(1) adds: "and (ii) any additional period which is to be treated as working time for the purpose of these regulations under a relevant agreement".
Calculation of working time
- A
(no. of hours worked) + B (hours worked on days ‘missed’)
______
C (17) - Reg 9 record keeping: 2 yrs
Example
- A worker has a standard working week of 40 hours and does overtime of 12 hours a week for the first 10 weeks of the 17-week reference period. No leave is taken during the reference period.
Derogations
- Category A workers (unmeasured working time): the working time limit does not apply.
- Category B workers (special circumstances): the reference period may be extended to 26 weeks.
- Category D (collective agreements and workforce agreements): The reference period for the calculation of average weekly working time may be extended to up to 52 weeks by a collective or workforce agreement for OTOWOR.
- Individual opt-out
Individual Contracting-out
Article 18(1)(b)(i)). Member States must ensure that:
- the general principle of the protection of health and safety of workers is respected;
- no employer requires a worker to work more than 48 hours over a seven day period unless the workers' consent has been obtained previously.
- details of workers who have given this consent must be provided to competent authorities on request.
- any worker refusing to give this consent must not be subjected to any detriment by the employer as a result;
- the employer must keep up-to-date records of all workers who work more than 48 hours a week;
- records must be placed at the disposal of the competent authorities, who may, for reasons connected with the health and safety of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours.
- the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days
Individual contracting out
- According to Regulation 5(2):
- the agreement may either relate to a specified period or apply indefinitely; and
- subject to any provisions in the agreement which provides for a different period of notice (up to a maximum of three months), shall be terminable by the worker by giving not less than seven day’s notice to his employer in writing;
Individual contracting-out
Regulation 5(4) the employer must:
- maintain up-to-date records which:
- identify each of the workers who has agreed to waive the 48 our limit;
- set out the terms on which the worker has agreed that the limit should not apply; and;
- specify the number of hours worked by him for the employer during each reference period since the agreement came into effect;
- the employer must permit any inspector appointed by the HSE or any other authority responsible under Reg 28 for the enforcement of the regulations to inspect the records; and
- provides any such inspector with information requested regarding any case in which a worker has agreed to waive the 48 hour limit.
Individual contracting-out: 1999 Regs
Regulation 4(2) "and shall keep up-to-date records of all workers who carry out work to which it does not apply by reason of the fact that the employer has obtained the worker’s agreement as mentioned in paragraph (1)".
Practical steps for employers
- what is working time?;
- how much time each worker spends working. If it is unclear, employers should consider monitoring the worker’s working time closely and will wish to consider how to determine their average working time;
- if a worker is working in excess of 48 hours a week, how to reduce their working time, seek the worker’s agreement to continue to exceed this limit or see if the flexibility for unmeasured working time applies; and
- what records are appropriate?
Night work
- 7 hours between 10pm and 7 am: 11pm-6am
- Average of max 8 hours in 24 hours for night work. Ref period: 17 weeks
Who is a night worker?
Guidance: a "night worker" is any worker whose daily working
time includes at least three hours of night time:
- a. on the majority of the days they work;
- b. on such a proportion of the days they work as is agreed between employer and workers in a collective or workforce agreement ; or
- c. sufficiently often that they may be said to work such hours as a normal course. A worker may be said to work at night "as a normal course" if they do so on a regular basis, e.g. on a rotating shift pattern that resulted in them working regularly during night time, as opposed to on an infrequent or ad hoc basis.
- R v Attorney General for Northern Ireland, ex parte Burns [1999] IRLR 315
Calculating a night worker’s average
A
-----
B - C
A - number of hours during the applicable reference period which are normal working hours for that worker;
B - is the number of days during the applicable reference period; and
C - is the number of hours of weekly rest to which a worker is entitled under the Regulations (i.e. 24 hours for each seven days) divided by 24.
Special hazards
work involving special hazards or mental strain: workers must not work more than 8 hours in any period of 24 hours
Derogations I
- The night work limits do not apply to:
- category A workers
- category B workers
- category D: the night work limits may be modified or excluded, or the reference period extended by a collective or workforce agreement.
Derogations II
- Where, in respect of category B and D workers the limit does not apply or is modified, the worker must (Reg 24):
- be permitted to take "an equivalent period of compensatory rest"; or
- in exceptional cases, where providing equivalent compensatory rest is not possible, be given other appropriate protection.
Health assessment I
Reg 7(1) "an employer shall not assign an adult worker to become a night worker unless the employer has ensured that the worker has the opportunity of a free health assessment before he takes up the assignment or the worker had a health assessment before being assigned to work to be undertaken during such periods on an earlier occasion" and free health assessment at relevant intervals
Health Assessment II
- free and confidential health assessment
- possible transfer to day work
- certain guarantees by the Member States
- employers
who regularly use night workers must inform the competent authorities
on request