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Employment Law Services Ltd

Working Time

Until 1988, with the introduction of the Working Time Regulations, working hours were not regulated by statute for the majority of workers in the UK.

Although there were widespread concerns expressed about the limits of the 48 hour working week, the majority of disputes about the Regulations have been about the entitlement to holiday pay, and rest breaks. Originally a number of industries were not covered by the Regulations, including air, road, and sea transport workers. Subsequent amendments to the Regulations have brought the majority of these previously exempted groups under the scope of the Working Time Regulations.

Who is covered by the Working Time Regulations?

The Regulations contain a broad definition of the word “worker”. This includes:-

a) Employees,
b) Anyone who performs work personally or provides services for the “employer”,
c) Agency workers,
d) Armed forces (subject to certain limits),
e) Police (subject to certain limits),
f) Civil servants.

Agency workers are treated as being employed by whichever of the agency or the client of the agent is responsible for paying the agency worker. In addition the term “worker” covers self employed building contractors that in fact work exclusively for one employer.

What is “working time”?

Working time is defined as any period:-

i. During which the individual is working, at the employer’s control and carrying out activities or duties for the employer,

ii. During which he/she is receiving “relevant training”, and

iii. Any additional period which is treated as working time for the purpose of the Regulations under a relevant agreement between the staff and the employer.

Time spent “on-call” will count as working time unless the worker is genuinely free to be away from the work place and can pursue leisure activities. So time spent “on-call” actually at a work place is actually working time. In any event if the worker is called out to perform work while “on-call” that time spent actually working will always be counted as “working time” under the Regulations.

“Down-time” at a workplace between periods of activity during a work shift also counts as “working time”, even if no work is actually done.

How is the 48 hour limit calculated?

Unless there is a relevant agreement to use a different period for the calculation, the 48 hour limit is calculated by reference to the average weekly working time over a 17 week period. This is extended to 26 workers for certain workers.

The 17 week period is usually a rolling period. Young workers (i.e. those under 18 years old) are subject to stricter limits on working time, and have greater rest break, entitlements.

The effect of ascertaining an average over a 17 week period is that it will allow for sudden increases in demand to be catered for so long as the work load then falls back within the rest of the 17 week period. When calculating the average hours some days will be excluded:-

Can individuals opt-out of the 48 hour week?

The Regulations do allow an individual worker to opt out of the 48 hour limit. Any opt out may relate to a specific period, or apply indefinitely.

Must employers keep records of hours worked?

Employers are obliged to keep records of hours worked for AT LEAST 2 YEARS from the actual time they refer to. There is no set form for this, so for example, a staff rota may suffice.

Are there any particular rules on night work?

The Regulations impose limits on night work THAT AN INDIVIDUAL MAY DO. In general terms night work should not exceed 8 hours in any 24 hour period. Those individuals that do night work are entitled to a free health assessment at the commencement of their period of night work, and at regular intervals subsequently. There are extra provisions relating to young workers and night work.

What can I do if a worker claims I have broken the Regulations?

It is important to note that in some situations workers have special protection when asserting their rights under these Regulations. Workers have the right not to be subject to any detriment at work because of refusing to comply with an instruction from their employer that breaks the Regulations, and also in the event of having alleged that their employer has infringed any right they have under these Regulations. It is not AUTOMATICALLY unfair to dismiss an employee for asserting a right under these Regulations. This protection arises irrespective of the employee’s actual length of service with the employer in question.

Therefore, in order to reduce risks of litigation against them employers must keep accurate records of the hours of work of their workers.

 

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