The People Bulletin

Working time is an area of employment law where employers often get it wrong.  The Working Time Regulations 1998[1] (‘the WTR’) impose limits on working hours and give various entitlements to time off to most workers except those in fishing and other shipping industries, where different rules apply, and particular sectors such as civil aviation, road  and other transport, the civil protection services, and domestic service where the WTR only partially apply.  ‘Workers’ include anyone working under a contract – agency workers are expressly covered – except for self-employed individuals who are in a customer/client relationship with a business. As usual, such arrangements are open to scrutiny in the employment tribunals to determine if they are genuinely reflective of the relationship between the parties.  Workers who set their own hours – ‘unmeasured work’ – are also exempt from some of the WTR provisions.

Scope of WTR

Broadly speaking, workers who come under the WTR are entitled to the following:

• a maximum average working week of 48 hours (although all workers can be asked to enter in to a written opt-out from this limit – which remains lawful practice despite various attempts at European level to ban or restrict its use);
• an average maximum of eight hours work for ‘night workers’ (who are defined under the WTR as workers who work at least 3 hours between 11pm and 6am in the normal course of their work);
• daily rest of 11 hours in 24 hours;
• weekly rest of 24 hours in each 7 day period;
• a rest break of 20 minutes after working for six hours (note that this is only an entitlement to one rest break, and not to another one if the worker works for a further 6 hours within the same shift); and
• 5.6 weeks’ annual leave (which can include bank holidays).

There are separate and generally more generous protections for young workers i.e. those between school leaving age and 18.  The limits on working hours for all workers are enforced by the Health & Safety Executive, through criminal prosecutions (which have been rare), whereas the other rights are directly enforceable by individual workers in the employment tribunals. 

Annual leave

It is the area of annual leave which has most often been the subject of litigation - presumably because it has the most obvious financial value.  Problematic areas which have been the subject of legal proceedings have included:

• whether sick workers lose any of their holiday entitlement whilst sick (they do not);
• whether an employer can insist that a sick worker takes pre-arranged annual leave if they are sick at that time (the employer cannot insist on this); 
• whether annual leave can be carried forward into the next annual leave if the worker is unable to take it in the previous leave year because of sickness or maternity absence (yes, in some circumstances); and
• whether holiday pay can be ‘rolled up’ within an hourly/daily rate (it cannot, as a payment for holiday must be made at the time the holiday is actually taken, unless it is a payment in lieu of holiday on termination of employment.  Rolling up holiday pay may on that basis be possible as a way of paying true casual workers who only work ad hoc days if their ‘employment’ terminates with the conclusion of each day’s work).

On-call workers 

Another difficult area under the WTR is on-call workers.  A large body of European case law has established that workers are to be treated as ‘working’ for the purposes of the European Working Time Directive (which the Working Time Regulations implement) if they are on-call at the employer’s premises and at the employer’s disposal.  This covers workers who live-in, at all times when they are expected to remain on-site, even if they are not being called upon to work and may even be sleeping.  Arrangements within the care sector are often such that these workers do not receive sufficient daily and weekly rest and rest breaks because, unsurprisingly, their employers do not view them as ‘working’ when they are sleeping!  There are also potential issues about national minimum wage (‘NMW’) in this scenario, although the test for ‘working’ under NMW legislation[2] is less strict than the test under the WTR, so that it does not follow that everyone who is ‘working’ under the WTR is necessarily entitled to NMW for each of those hours.  There have, however, been cases where the employer has been sued for significant sums for breach of the WTR and NMW legislation where care workers have been on-call an in receipt of little or no additional pay in between their day shifts. 

Protection from termination of worker contracts

It should also be borne in mind that workers have protection from termination of their contract if this is on the grounds of their asserting a Working Time right, or refusing to comply with an instruction to work in a way which breaches the WTR.  This overrides the usual rules about needing to have one year’s continuous service to bring an unfair dismissal claim, and gives protection to a wider category of workers than employees who are covered by the unfair dismissal rules.  So, for example, a worker who refuses to sign an opt-out from the 48 hour average working week, or who complains about insufficient rest breaks in their first month of employment and is dismissed, can bring claims against their employer.  This is the case even if the worker is mistaken in their view that their Working Time rights are being infringed.  Care should therefore be taken if dismissing a worker who has made allegations about working hours/rest breaks/holiday entitlement – even if the employer regards these allegations entirely spurious.  Imposing other detriments on such a worker, like not promoting or training a worker, subjecting him/her to disciplinary action or changing his/her conditions of employment is also unlawful, although it may be legitimate to alter payments to a worker if this is as a consequence of their working reduced hours, and if their contract makes provision for this.

As there is no limit to damages which can be awarded under the WTR, it is certainly an area where it pays for the employer to get things rights. 

[1] www.opsi.gov.uk/si/si1998/19981833.htm

[2] www.minimumwage.org.uk/