Balance in Working Time Regulations

The working Time Regulations 1998 were introduced to implement the Working Time Directive and came into force from 1st October 1998. The Labour Government introduced them as the previous Conservative Government was strongly against the Directive. Therefore, they were implemented two years after the deadline had passed. This essay will aim to discuss how the Regulations protect individuals and maintain flexibility for businesses and the issues that arise.

The Working Time Regulations 1998 covers Workers (this includes employees but excludes the self employed). A worker is defined as being “an individual who has entered into work or works under…a contract of employment, whether express or implied…” [2] Agency workers are also included but they must not work for example, a rival firm. The definition of working times comes from the case of Landeshauptstadt Kiel v Jaeger; [3] it is whereby the employee is working at a place of work at the ‘disposal of the employer.’

The main provisions are; there is a maximum 48 hour working week [4] whereby the average has to be calculated over a seventeen week period (i.e. average must be 48 or below) but workers are permitted to opt-out. Secondly, night workers [5] must only work 8 hours out of 24 hours (over a seventeen week period). Adult workers are entitled to one day’s holiday every week [6] and eleven hours of rest in every 24 hour period. [7] They are also entitled to a 20 minute break for every 6 hours worked. [8] In terms of paid annual leave workers are entitled to 28 days (now 5.6 weeks) however these holidays cannot be carried over to the next holiday year. [9]

Individuals are limited to a 48 hour working week unless they opt-out. The opt-out has to be agreed between the employee and employer, must be in writing and signed by them both. This is so the employer can ensure that the worker does not exceed 48 hour limit. The breaks ensure that the employee is taking a rest from work. However, Employers do not have to keep making sure that workers are taking their rest they must simply allow their employees to have breaks. [10] Additionally, if the employee wishes not to opt-out they can terminate this by giving notice of up to 7 days to his/her employer. I feel that 7 days is not enough and it should be extended. The Regulations also stated that an employee could only have rights to paid annual leave after working for the same company for 13 weeks in total. [11] This is problematic as it excludes those people who work on e.g. a temporary contract basis. [12]

In the Article [13] by Barnard, Deakin and Hobbs there is a detailed analysis of the 48 hour opt-out. They argued that the Directive had not really eliminated the ‘long-hours culture’ I agree with this because if people are given the chance to opt-out if they need the extra income they will do so to provide for their family. Further to this they will want to show commitment to job, and many employees are motivated, and aim to get results so time management comes into play and achieving their maximum potential. The survey indicated that people who work in the medical field e.g. operating theatres, pathology etc were working a maximum of 56 hours a week due to shortages in these areas. [14] This is problematic but in turn, if the job/role is demanding and requires long hours of surgery then it is not as simple as having a rota whereby once one employee has worked a 6 hour shift they can go for a break for twenty minutes in the middle of an operation whilst someone else takes over. On the other hand however, a company that was interviewed stated that the Regulations really did help them in terms of them changing how they worked led their workers to be more healthy. [15] In addition to this, engineering companies stated that extra hours worked one week led to an increase in sickness the following week. This means that having reduced hours would “improve efficiency.” [16] It seems from the survey that people who work in managerial roles are more likely to use opt-outs. [17] This is due to their role and the amount of work they need to get through. The survey also indicated that employees would like to work shorter hours but they felt that they had to work long hours because their peers were. [18]

Moreover, there are further reasons that suggest that Regulations do not sufficiently protect individuals. Working lengthy hours impacts on family life. The longer hours worked means less time spent with their spouse and children. This could lead to problems in the relationship and again increase levels of stress and lead to more employees being on sick leave. Furthermore, as demonstrated by the case of Landeshauptstadt Kiel v Jaeger [19] there is the issue of ‘on call’ work. In that case it was held that if you are at work (regardless if you are sleeping for half the shift) this constitutes working time due to the fact that the employee’s sleep will be disturbed and he/she is away from family.

There have been issues between annual leave and sick leave. In the case of Perada v Madrid Movilidad SA, [20] a worker in Spain was required to take his annual leave at a particular time of year, however he fell ill during this time. This case established that annual leave could be taken at another time if sickness prevents the employee taking the leave, thus protecting worker’s rights.

With regard to night workers, the employer has to ensure that a free health assessment is provided and if need be, further, regular assessments must also be provided [21] employee must be put onto day shifts if advised to do so by a medical expert reasons connected to health. [22] This means that again the employee is protected and has this ‘back up’ if his/her health deteriorates. There are special categories of work whereby it is possible to derogate from the rest period, night work falls into this category. It also applies to postmen, farmers (during harvest) etc. They are subject to compensatory rest [23] However, if it is not possible to provide the worker with compensatory rest, the employer will provide the employee with protection for his health.

However, there are people in certain professions who are not protected by most of the regulations. These are people working at sea/sea fishing, road, transport, [24] junior doctors [25] and if the work of some professions such as; the armed forces or police clash with the provisions. [26] Furthermore, managing executives [27] , people working in the family business, [28] security guards, people working in churches / conducting religious ceremonies [29] Regulation 20 relates to unmeasured working time which is where it cannot be precisely determined by the worker, the length of the time worked. It could therefore be argued whether this is fair. They should surely be treated the same as other workers.

In the article [30] by Lisa Rodgers, the case of MacCartney v Oversley House Management [31] was discussed whereby the employee was given a flat to live in but she had to stay there for the duration of her 4 day shift and it was argued that the fact that it was her home did not matter as in other cases. [32] This clearly demonstrates that there are problems with what actually constitutes ‘Working Time.’

Under the regulations, an employee has the right to complain to the Employment Tribunal about their annual leave and breaks. In the case of Barber v RJB Mining (UK) Ltd [33] employees had not signed an opt-out but were still working over the 48 hour limit over a 17 week period. They tried to get an injunction against their employer and a High Court order. It was held that the employer had to comply with the maximum weekly working week. However, the injunction was not allowed. This can be seen as a drawback as it does not place any restraints on employers to prevent them making employers work more than 48 hours.

There are various reasons for why Businesses favour the use of opt-outs. Barnard, Deakin and Hobbs found that it would not be sufficient to have a 48 hour week and it would ‘impair efficiency,’ businesses would be at a greater advantages especially those firms who have a lot of workload with demands that have to be met. Having the opt-out would mean that their staff could work ensure the work is completed, maintaining the flexibility for the business. Whilst I agree with this especially with regards to e.g. City Law firms, I feel that the health of the employees outweighs the need for efficiency and working long hours leads to increased stress levels which in turn result in employees taking sick leave resulting in higher costs for the employer. The employers also argued that if it was not for the opt-out recruiting more staff would lead to problems such as the need for more car parking spaces, equipment etc. Further to this, a significant argument would be that the employees that were already employed already have the sufficient knowledge, training and experience, recruiting more staff would lead to additional costs and delay. An interview with an investment bank showed that usually one employee would deal with one client because they had the background knowledge relating to that person and it is more professional for them to continue dealing with the same person as opposed to swapping and changing. [34]

In the follow up study by Fiona Neathy [35] found that since the cessation of seven day working week, a security company saw a decline in hours worked shorter hours had led to “greater potential flexibility” [36] for the company to meet the needs of customers and resolve emergencies. The HR manager of a food manufacturer reported that a shift based system was introduced to ensure that those who had opted-out were still within the limit over the 17 week period. However, the cost implications were seen by the retail company as a problem because they had to amend the way holiday pay was calculated. Finally, the contracting company had incurred costs due to employing new staff however, the good thing about this was because they did not have to pay overtime, this balanced itself out.

In conclusion, the law seems to protect individuals and tries to simultaneously maintain flexibility for businesses. Some businesses have implemented the Regulations and seen a positive difference however some have seen no difference at all. Even after the 1998 Regulations there have been further amendments however, this is still a grey area in law and is in definite need of reform.