THE MARSHALL & GALPIN GUIDE TO THE WORKING TIME REGULATIONS 1998

The Working Time Regulations 1998 came into force on 1st October 1998 and were meant to implement the EC Working Time Directive and partially the EC Young Workers Directive. Originally due to come into fruition by 26th November 1996, the delay was as a result of government intervention via the European Court of Justice and subsequently to allow for revisions. Eventually even the 1998 Regulations were amended in 1999. Below is a summary of the Regulations.

SCOPE OF THE REGULATIONS

The definition afforded to workers under the Regulations is wider than merely employees. Regulation 2 provides that workers are both those working under a contract of employment and also those working under a contract to perform personal work or services except where they are genuinely clients/customers of professions or businesses. Consequently certain persons previously considered to be self-employed are now caught by the Regulations in the same fashion as employees excepting people genuinely self-employed in the pursuit of a business activity of their own. Though the Regulations apply to workers of all ages, younger workers (between the ages of 16 and 18) are governed by stricter rules. Certain further exceptions to parts of the Regulations may be found in the derogations e.g. people involved in transport, trainee doctors, the armed forces, the police and domestic servants.

Another key concept to the operation of the Regulations is the definition of working time. Although Regulation 2(1) provides an exhaustive definition, briefly working time is the time during which the worker is carrying out his/her duties for the employer and during this time is at the employer’s disposal. Certain periods would not qualify as working time and these include periods when the worker is on call, lunch/rest breaks and certain types of training. Other exceptions may be agreed between the employer and worker in a specific document e.g. collective/workforce agreements.

THE REGULATIONS

The 48 Hour Week
Perhaps the best known of the Regulations is a 48 hour limit on the average working week. The standard reference period by which the average is calculated is a period of 17 weeks. This reference period can be extended in certain circumstances to 26 or 52 weeks. In analysing the reference period it is possible to disregard periods of absence resulting from sick leave and statutory annual leave. Workers may contract out of the maximum working week however notice to terminate an agreement for such contracting out must not exceed 3 months. Employers are required to keep a record of which workers have been given such an agreement. However, workers cannot be compelled into signing such opt-out agreements (see Barber –v- RJB Mining (UK) Ltd [1999] ICR 679). Different rules apply to temporary and new workers with the reference period commencing at the beginning of the employment but the hours worked must not exceed 48 hours in the first week, 96 hours in the second week etc. so as to avoid the situation of the worker exceeding the limit and leaving before the end of 17 weeks. Certain categories of workers are expressly excluded e.g. workers with autonomous decision-taking powers e.g. managing executives, family workers and members of he clergy.

Night Work and Shift Work
Medical evidence shows that night workers may be subject to above normal health and safety risks and as a consequence the Regulations provide for special restrictions in an effort to combat the potential problems. Night workers may not work for more than 8 hours in any 24 hour period again calculated using a 17 week reference period. Night time is defined as the period between 11.00 p.m. and 6.00 a.m. as a default though other periods may also qualify. The worker must work at least 3 hours at night as a normal course thought not necessarily on the majority of the working days. Hence shift workers may be categorised as night workers even though their shift patterns may only require night working on certain days on a rotational basis. Workers involved in hazardous or heavy physical/stressful mental work must not exceed 8 hours per 24 hours actually worked. No reference period applies. Furthermore, Regulation 7 states that night workers are entitled to a free health assessment before they commence the night work and thereafter at regular intervals. Where a health problem is diagnosed as related to night working, the worker is entitled to a transfer to day working wherever possible.

Rest Entitlements
With Health and Safety for workers in mind minimum rest entitlements are laid out in the Regulations. A daily rest period of 11 hours in each 24 hour period is stipulated though not restricted to a calendar day. During a working week, an adult worker is entitled to 1 day off though not necessarily Sunday (see United Kingdom of Great Britain and Northern Ireland –v- Council of the European Union [1997] ICR 443). The reference period for this day of is 14 days. An adult worker is entitled to a rest break of 20 minutes if their daily working time exceeds 6 hours. Notably there is no requirement for this rest break to be paid. For all of the above rest entitlements, though there are specific exclusions and derogations, perhaps most significantly there is flexibility in the timing of the rest entitlements subject to a compensatory test.

Annual Leave
Prior to the statutory imposition of annual leave, it is estimated that some 2.5 million workers in Britain were not entitled to any paid holiday leave (see Labour Force Survey Autumn 1996). Now each worker is entitled to 4 weeks paid leave subject to a 13 week qualification period. The leave year is to commence 1st October each year for workers employed before 1st October 1998 and on the date of commencement of employment for all those employed after this date. Most employers will, however, have contractual leave years so as to avoid the problems of different workers having various leave year periods. Part time and workers with varying hours are also covered by this regulation and are entitled to paid holiday calculated on a pro-rata basis.

ENFORCEMENT OF THE REGULATIONS

Both the maximum working week and regulations covering nightworkers are enforceable by the Health and Safety Executive with the employer facing possible criminal sanction. The remaining entitlements are enforced by the individual making a complaint through the Employment Tribunal within 3 months of the alleged breach of entitlement.

NOTE:    Different rules apply to young workers and the above information is for adult workers.

For further information, please contact:-

Dharmender Singh Sall  (Oxford) 01865 268602    email - mailto:dharmender.sall@marshallgalpin.com

Stephen Woods             (Oxford) 01865 268603   email - mailto:stephen.woods@marshallgalpin.com

James Stonham             (Thame) 01844 219102   email - mailto:james.stonham@marshallgalpin.com