EXPLANATORY GUIDE TO THE WORKING TIME REGULATIONS 1998
Carillion PLC fully endorses the principles contained within the Working time Regulations that will in the long term provide our employees with improved working conditions.
For the new Regulations to be effectively applied both employees and management must accept and acknowledge the need for a cultural change with an increased emphasis on removing the need to continuously work longer hours. The aim of the Working Time Regulations is to limit the hours worked by an employee to no more than 48 hours average per week. Employees should also be required to take regular rest break and rest entitlement. In addition employees now have a statutory right to annual leave and there are specific provisions relating to night work.
The objective of the Regulations is to protect a worker’s health by ensuring that they are not so exhausted that they put their own health and that of others at risk.
These regulations will have a significant impact in time on work patterns in the UK. Encouragement should be given to employees to work within the Regulations and keep the need for working excessive hours to a minimum.
Check the following definitions and guidance notes to see how the regulations affect you personally, or contact your HR department if you cannot find the answer to your question below.
Workers
Anyone working under a contract of employment, whether written or not is a worker. Therefore all employees employed by the company will be subject to the provisions of the Working Time Regulations.
Workers who are working for subsidiary companies within the Carillion Group but are regarded as agency staff, for example, they are provided by NCS, will still be entitled to the same protection under the Regulations. However it will be the agency organisation that will be regarded as the employer.
Working Time
Working time means any period during which the worker is working at the company’s disposal and specifically carrying out their activities or duties. However, all elements of this definition must be satisfied. For example, any period of time taken as a rest break including lunch hours, whether they are paid or unpaid will not be working time. In addition any period of time when a worker is "on call" but is not specifically carrying out their activities and duties will also not be classified as working time.
Travel Time
Normal commuting time to and from work does not count towards working time. The company has also taken the extended view that travelling time outside the normal working hours as stipulated by contracts of employment will also not be working time. This position is supported by the DTI guidance issued in January 2000. However the issue of travel time is not straight forward and if travel time could be described as an integral part of an employee’s daily duty and necessary for them in order to perform their work i.e. travelling from site to site, then it is likely that on a legal interpretation of the Regulations that this time would be classified as working time.
Maximum Weekly Working Time
The basic core requirement of the Regulations is that an employee’s maximum weekly working time including paid overtime must not exceed an average of 48 hours in each 7 day period. For the purposes of calculating an employee’s average working time over a particular week, working time is calculated by using a 17-week reference period.
In certain circumstances it may be possible to extend the reference period beyond 17 weeks. Such a reference period can be up to 52 weeks however it will be necessary to agree the extension for the reference period with a trade union where there is a trade union in place or workforce representatives, and thereafter enter into a written agreement.
The maximum weekly working time does not apply to any worker who has voluntarily agreed to opt out of the provisions by completing and signing "an individual opt out agreement" however it will not be possible for employees to opt out of other aspects of the Regulations for example provisions in respect of night work or rest breaks.
Records of Hours Worked
Following recent statutory amendments to the Working Time Regulations implemented from December 1999 the Company will now be obliged to keep the following records: -
For all workers who have not completed individual opt out forms to enable them to work in excess of 48 hours per week it will be necessary for the company to keep records which are "adequate to show" that maximum weekly working time provisions are being complied with. Therefore provided the company are able to establish if necessary that employees are not working more than 48 hours per week on average it should no longer be necessary to specifically record each and every hour worked by every employee.
For workers who have completed individual opt out agreement the Company will be required to keep a record of the names of these individuals, however it will no longer be necessary for the company to specifically record all of the hours worked in each reference period by such workers.
In addition the company will need to keep records which are adequate to show that the provisions of night work limits are being complied with, however this should be possible by referring any outside authority to shift patterns and schedules in respect of night work. Furthermore the company will be required to keep records of the occasions when night workers are given the opportunity for a free health assessment.
Rest Breaks and Rest Periods
Under the Regulations all employees are entitled to a 20-minute break for every six hours worked and they are permitted to take this break away from their workstation or office.
The Regulations stipulate that all employees are entitled to 11 hours consecutive rest in any 24-hour period during which they work for the company.
Employees are entitled to either 24 hours uninterrupted rest in any 7 day period, two 24 hours uninterrupted rest periods per 14 days or one 48 hour uninterrupted rest period per 14 days.
It should be noted that the weekly rest entitlement set out above is in addition to the daily rest entitlement
Night Time Working
Night time is defined as a period of at least 7 hours which includes the period between midnight and 5 am and which is either defined in a relevant agreement or in the absence of such an agreement is the period between 11 a.m. and 6 a.m.
A night worker is defined as someone who as a "normal course" works for at least 3 hours of his or her daily working time during night time.
The Regulations state that a person works such hours as a normal course if he works such hours on a majority of working days. However if a worker regularly works at night despite what the Regulations state they are likely to be considered as night workers. In a recent case in Northern Ireland it has been held that a person who spent one week of each three week cycle working at lease 3 hours during the night time was a night worker for the purposes of the Working Time Directive. In the court’s opinion as a normal course means no more than as a regular feature of employment.
If a worker is a night worker then: -
such workers are entitled to an opportunity for free health assessment before becoming a night worker and at regular intervals i.e. once a year thereafter. Self Assessment health forms will be issued to employees to be completed as part of their recruitment process. These forms will be used to assess an employee’s suitability for both normal work and night work. The form will be submitted to either the HR Department or the Administration Department with the employee's approval. If any concerns have been raised by the self assessment process then the employee will be referred to a medical practitioner for further investigation. Due to the confidential nature of the information a statement of approval or otherwise will be given by a medical practitioner appointed by the company to carry out the assessment prior to commencing employment.
If night workers are suffering from health problems, which in a medical practitioner’s opinion is connected with night work, the employee will be required to communicate this to the company. Where it is possible such individuals should be transferred to other work.
A night worker’s normal hours should not exceed 8 hours in any 24 hour period. However, this 8 hour period is calculated over a reference period of 17 weeks.
Hazardous Work
Hazardous work i.e. work which involves special hazards or heavy physical or mental strain which is considered hazardous by health and safety risk assessment is subject to different rules. The company will ensure that hazardous work will be defined by either a collective agreement or by means of a risk assessment under the management of Health and Safety at Work Regulations 1992. Where work is regarded as hazardous workers will not be able to work more than 8 hours in any 24 hour period.
Annual Leave
Workers are now entitled to a minimum of 4 weeks’ paid leave each year as from 23 November 1999. This statutory entitlement is not in addition to public and statutory holidays.
Where the company provide annual leave in excess of the statutory entitlement within contracts of employment then the contracts of employment will prevail.
Leave cannot be carried over from one leave year to the next and employees cannot receive a payment in lieu of untaken holiday except to the extent that such an entitlement arises when an employees employment is terminated for whatever reason when at the date of termination there is an entitlement to accrued but untaken holiday.
New employees will be required to complete a 13 week qualifying period before they are entitled to take annual leave. However once completing this 13 week qualifying period annual leave will accrue from the first day of their employment.
Unmeasured Working Time - Amendments to the Working Time Regulations 1998.
There are a significant number of employees employed within the business in various management roles and of different levels of seniority who are paid on an annual salary basis with such salary being gauged in accordance with the demands and responsibilities of any particular role. The government have introduced amendments to the derogation with regards to "unmeasured working time" which dis-applies the working time limits for workers for whom the duration of their working time is not measured or predetermined or is determined by the worker themselves.
Within Regulations specific examples of such workers were provided for example Managing Executives or managers with autonomous decision taking powers. On a legal interpretation this derogation was quite rightly given an extremely narrow interpretation and was not designed to apply to all managers, sales representatives or white collar workers within an organisation.
The government however have amended this derogation. The amendment will apply to individuals who have latitude to prioritise between tasks and choose how much time to work on different activities. It is envisaged that such employees will determine when they finish work on any given day and this will inevitably mean that an employee who does have such latitude will wish to exercise flexibility in respect of their working hours and have the ability to work additional hours. The Government’s proposal is that these additional hours ought not to be considered within the calculation of an employee’s maximum weekly working time. Therefore making it unnecessary for all employees who may work more than 48 hours per week on average to expressly sign an individual opt agreement. However if such employees are compelled to work extra hours either on instruction or such additional hours are paid then such time would constitute part of their time which would be calculated for the purposes of working out their weekly working hours.
If you need any further assistance with the areas covered by the Working Time Regulations please contact your Human Resources Department. |
