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Working Time

The Working Time Regulations 1998 came into force on 1st October 1998 implementing the European Council Directives.

The regulations are intended as a tool for workplace health & safety and hundreds of employment tribunal claims have been successfully fought using them.

This booklet sets out the principles and covers the up-to-date issues relevant to trade unions and their members.

WORKING TIME AND HOLIDAY BASIC RIGHTS

• Four weeks paid annual leave per year
• An average 48 hours a week working limit
• A limit of 8 hours (average) work in 24 for night workers
• Free health assessments for night workers
• 11 hours rest a day
• 24 hours rest per week
• Rest breaks for those who work more than six hours

Who is covered?

The regulations apply to workers. A worker is defined in the regulations as someone who has a contract of employment or “-any other contract....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 that contract that of a client or customer of any profession or business undertaking carried on by the individual”.

Most casual workers, freelancers and agency workers are included in this definition.

Who is not covered?

Excluded sectors

• Members working in the transport sector (air, road, rail, sea etc)
• Sea fishing
• Other work at sea
• Doctors in training
• Police, armed forces etc
• Domestic c servants
• Workers engaged in unmeasured working time

Even office workers in the transport industry are excluded. But a new directive, to be in force by August 2003, covers most of the previous exclusions including all non-mobile workers in the excluded sectors.

Special cases

Rights for night workers, and in relation to rest and breaks do not apply:

• In security and surveillance work
• Where continuity of service is required
• Where there is a foreseeable surge of activity
• Unforeseen circumstances, such as emergency situations
• Where there is distance between workplaces or a residence and a workplace

WORKING TIME

To qualify, the worker must be:

• Working
• At their employer’s disposal
• Carrying out activities or duties

Note that time spent on standby at the workplace is working time, but time spent on call at home or elsewhere other than the workplace does not apply until the worker is called out.

With the agreement of Unions, in some circumstances Working Time arrangements can be modified to allow for greater flexibility.

Where for example by agreement a worker is required to work during rest periods, the employer must allow where possible, an equivalent period of compensatory rest.

Paid Annual Leave

All workers are entitled to four weeks paid annual leave (three weeks for leave years starting earlier than 23 November 1999). The four weeks includes bank holidays. Part time workers have the same rights pro rata.

The payment for annual leave is calculated by reference to the Employment Rights Act 1996. This means a worker’s normal week’s pay is based on the normal working hours fixed by the contract of employment. Overtime is not included unless the employer is under an obligation to provide overtime to the worker.

A normal week’s pay is:

• What a worker would earn in a normal working week if they work regular hours
• The average hourly rate multiplied by the average of the normal weekly hours over the previous twelve weeks, if normal weekly working hours vary
• The average pay over the previous twelve weeks if normal working hours are not worked

The regulations include a 13 week qualifying period which excludes workers on contracts of less than 13 weeks from paid annual leave. However, the European Court judgment won by BECTU in June 2001 concluded that the qualifying period must be removed to bring UK legislation into line with the Directive.

The obligation to provide paid annual leave cannot be reduced, nor can leave be ‘bought’ by a payment in lieu unless the employment is terminated.

To take leave workers must give at least twice as much notice as the amount of holiday required. Employers must give the same amount of notice if they require a worker to take leave. Employers can also give notice that workers cannot take leave and in such a case only need to give the same number of days notice as the leave requested. Notice can be modified by agreement.

The government is proposing new rules to limit the taking of leave in the first year to leave accrued at the date of the proposed holiday.

48 hour week

The regulations stipulate that the working week should not exceed an average of 48 hours for each seven days. This is averaged over the worker’s previous seventeen weeks worked.

An agreement may be reached between the worker and the employer to opt out. Any “opt out” must be in writing individually with each worker who chooses to opt out and not by collective agreement. The worker must be able to bring the opt out to an end by giving notice of seven days or longer (up to three months) if agreed.

Rights for night workers

Night workers normal hours should not exceed an average of 8 hours for each 24 hour period. The reference period again is seventeen weeks. If the night worker is employed in work involving special hazards or heavy physical or mental strain (to be defined by collective agreements or risk assessments) then the shift should not be longer than eight hours at any time. This can be modified or determined by collective agreements.

Night workers and potential night workers are entitled to free health assessments at regular intervals.

Night time is classified as between 11pm and 6am and a night worker must work at least three hours within that period “as a normal course”. One week of nights out of every three is held to be “as a normal course”.

Daily rest

An adult worker is entitled to a rest period of not less than 11 consecutive hours.

An employer can modify this in special cases or if there is a collective agreement by providing “an equivalent period of compensatory rest”. The DTI guidelines suggest that this should be if possible within a couple of weeks.

Weekly rest

An adult worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven day period. This is in addition to the daily rest period, but the two can overlap.

An employer can determine that this take the form of two 24 hour rest periods in a 14 day period, or one 48 hour rest period in a 14 day period.

Again, an employer can modify in special cases or if there is a collective agreement as long as he provides compensatory rest, if possible, within two months.

Rest breaks

If an adult works more than six hours in a day, they are entitled to a rest break of not less than 20 minutes, to be taken during working time not at the beginning or end of a shift. Rest breaks can also be modified by collective agreements.

Young workers

A young worker for the purpose of these regulations is aged 15 to 17 and over the compulsory school age.

There are special considerations for young workers which need to be
considered if applicable.

What to do if there has been a breach

The provisions are divided into entitlements and limits. Entitlements can be enforced by individual workers in employment tribunals. These are:

• Breaks
• Daily rest
• Weekly rest
• Annual leave
• Compensatory rest

Limits are enforced by the Health & Safety Executive or by civil claims if the worker suffers loss, injury or damage as a result of a breach. These are:

• Maximum weekly working time
• Length of night work
• Health assessments for night workers
• Transfers to day work

First contact the employer, through the usual union channels, and point out the breach, asking the employer to rectify it immediately. If the employer refuses then a claim can be brought under the Working Time Regulations by application to an employment tribunal.

This must be done within the three month time limit from the date of the act or omission complained of or from the first day of a right being denied (eg period of leave).

An applicant who brings a tribunal claim can ask for a declaration that his employer has refused to permit him to exercise any right under the regulations. A tribunal can also make an award in this situation, based on what is ‘just and equitable in all the circumstances’.

An applicant can also seek compensation for any losses as a result of breaches of their entitlement to paid leave.

In addition, a worker can bring a victimisation claim as a result of being subjected to a detriment by any act or deliberate failure to act of an employer.

A tribunal can award in these circumstances whatever it deems fit and suitable, including an injury to feelings award and aggravated damages.

From October 2004, unless there are special circumstances (e.g. threats or continuing harassment by the employer) the employee must write to the employer raising a grievance and attend one or two meetings before bringing any working time claim to an employment tribunal. The normal three months time limit is extended by a further three months to allow this to happen. Compensation may be reduced if the applicant failed to follow the statutory grievance procedure.

An applicant can also bring a claim for unfair dismissal for reasons connected with Working Time Regulations. From October 2004, the employer has to follow a dismissal and disciplinary procedure, which includes a right for the employee to appeal. The normal three months time limit is extended by a further three months to allow this to happen. Compensation may be affected by either side’s failure to follow the statutory procedure.

If the remedies available under the Working Time Regulations are inadequate for any particular situation, it is sometimes possible to bring a claim for unlawful deductions and for a claim to include holiday pay.

Collective agreements

Collective or workplace agreements can modify provisions on daily and weekly rest breaks, maximum weekly working hours and night work.

Set out below are the areas where collective agreements can have
a role:

• Determining additional working time
• Determining night work
• Setting dates for calculating reference periods
• Identifying hazards
• Details of rest break: duration and terms on which granted
• Start date of leave year
• Payment due for leave not taken on termination
• Repayment for excess leave taken
• Varying annual leave notice requirements