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Issue 106 (December 2005)  

Contents

In the news
Working time gentlemen please
Working holiday
Sick of holidays?
Personality plus
A shoddy compromise
Tiptoe through the TUPE
Trade secrets

Working time gentlemen please

The Working Time Regulations (WTR) 1998 state that a worker's average working time should not exceed 48 hours, on average, per week. However, workers can agree individually to opt out from them.

In Hone v Six Continents Retail Ltd, the Court of Appeal has said that courts must take the regulations into account (and whether the employer has breached them) when deciding whether a stress at work claim was reasonably foreseeable, if the worker has not opted out.

What Were the Basic Facts?

Mr Hone, a pub manager since 1995, collapsed at work in May 2000 with chest pain and giddiness. According to Mr Hone, this was caused by stress due to his long working hours (sometimes in excess of 90 hours a week).

According to his employer, however, there was no need for him to work such long hours, had he planned his work better. The county court judge agreed that until April 2000, it was not easy to see why he was working such long hours. However, that month, two of his four key employees left, putting extra pressure on him. And because he had no assistant manager, he could not arrange the time off that was owing to him.

Mr Hone then had a meeting with the new operations manager, Mr Reynolds, on 19 April, to discuss his long hours. Mr Reynolds was aware that Mr Hone had not signed a written opt out from the WTR and also agreed that he needed the support of an assistant manager.

What Did the County Court Decide?

The judge made the following findings:
that Mr Hone had a good employment record from 1995 until April 2000
that he had been asking for an assistant manager since transferring to the new pub in August 1999
that Mr Hone had been submitting regular returns showing that he was working 90 hours a week
that he refused to sign the opt out under the Working Time Directive because of his concern at the hours he was working
that Mr Hone specifically complained of working excessive hours and that he was very tired
that his employer was aware of the WTR and the purpose behind them.
On the basis of these facts, the judge found that it was reasonably foreseeable that, from 19 April, Mr Hone's health would suffer from stress at work. Although his employer had provided some occasional relief, an assistant manager was not appointed until Mr Hone collapsed.

The judge also held that his employer was under a duty to take all reasonable steps to ensure that Mr Hone did not work for more than 48 hours per week. Instead of providing an assistant to ensure he had two days off a week, the company "stood idly by" until Mrs Hone told them in May that Mr Hone was sick.

What Did the Court of Appeal Decide?

Relying on the case of Hatton v Sutherland (2002, EWCA Civ 76), the Court said that the crucial question is "whether this kind of harm to this particular employee was reasonably foreseeable." The issue of foreseeability, in turn, depended upon what the employer knew (or ought reasonably to have known) about the individual employee.

However, because it can be difficult to know "when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it."

In this case, the Court said that the factors identified by the judge were sufficiently plain indications of "impending harm to health" for a reasonable employer to realise that he should do something about it. In this case, to hire an assistant manager.