All employers need to be aware of these new Regulations implementing into UK law the EU’s Working Time Directive. In this article, we look at the main implications of the Regulations and how they will affect both employers and employees.
Who Is Covered By The Regulations?
Anyone who works under a contract of employment or agrees to provide services to an employer other than as a client or customer. This will mean that some people not traditionally thought of as employees are governed by the new rules. There are full and partial exceptions for some workers. Those in the armed forces, the police and the transport industry are completely exempt.
Partial exemptions apply to various categories of workers including, for instance those working in press, radio or television and cinematic production.
Managing executives or other persons with autonomous decision making powers are exempt from the provisions other than those concerning holiday leave.
Workers must not work more than 48 hours in an average working week. This includes training and time when the worker is at the employer’s disposal. The working week is calculated by averaging over a 17-week period. Annual leave, sick days, maternity leave and similar days off are not counted and extra normal days are added to make up the difference. The total number of hours worked is then added up and divided by 17.
Individuals can opt out of the limit if the opt-out agreement is in writing; the worker can bring the opt-out to an end by giving notice of not less than 7 days but not more than 3 months.
Employers must maintain up-to-date records for 2 years of their opted-out workers and the hours they have worked. These records may be inspected.
For the first time, workers who have 13 consecutive weeks of qualifying service are entitled to annual leave. These workers are entitled to at least 3 weeks every year (rising to 4 weeks on 23 November 1999). The worker must give advance notice in order to take a particular day as a holiday. The employer can require that no leave is taken on particular days and that leave cannot be carried over to future years. The notice provisions in the Regulations can be varied by agreement.
Payment in lieu of leave cannot be made without agreement except on departure. A worker can, by prior agreement, be required to compensate his or her employer, when the employment comes to an end, for excess leave taken.
Workers are entitled to at least 11 consecutive hours rest in each 24-hour working period. Young workers (under 18 but over compulsory school age) are entitled to 12 consecutive hours. There are separate rules for shift workers.
Workers are entitled to a period of 24 consecutive hours rest in each 7-day period, but this can be averaged over a 14-day period. Young workers are entitled to 48 hours in 7 days. This may be interrupted or reduced in some cases but never to fewer than 36 consecutive hours.
The weekly rest period is supposed to be in addition to the daily rest but if there are objective, technical or other reasons which justify it, the daily rest may be incorporated into the weekly rest.
Workers are entitled to a rest period of 20 uninterrupted minutes where the working day is more than 6 hours. Young workers are entitled to 30 minutes in a day of more than 4.5 hours.
Where the work is monotonous or the work rate is pre-determined, the employer must ensure that the worker is given adequate breaks.
There are special restrictions on night workers’ hours. The normal working hours of a night worker must not be more than an average of 8 hours in 24. If the work involves special hazards or heavy strain this is reduced to an actual 8 hours in 24.
A night worker is someone who normally works at least three hours of their daily working time at night. Night is defined as 11pm – 6am or a period agreed between employer and worker of at least 7 hours which must include 11pm – 6am.
Employers must take all reasonable steps to comply with the time limit and must comply with record-keeping requirements. They must also give a free health check to determine whether the worker is fit to work at night. Assessments must take place at regular intervals after the worker starts night work. If a worker is found to be suffering from health problems recognised as being connected with night work, he or she is entitled to be transferred to day work whenever possible.
Employers and workers can use collective agreements (i.e. between trade unions and employers’ associations) to opt out of the rules. Workforce agreements are a new concept where an employer may agree changes to some of the rules with elected worker representatives.
Temporary workers are also given protection under the regulations. The person who pays the temp, whether as agent or principal, will be responsible for ensuring that the worker is treated in accordance with the rules.
The Regulations are enforceable in the Employment Tribunals and through Health and Safety Executive inspections and fines.