Business Advice’s resident employment law expert Carole Thomson outlines your legal obligation to ensure employees are not overworked.
In September 2015, the European Court of Justice ruled that mobile workers (those with no fixed place of work) who spend time travelling from home to their first and last customer should have this time considered as working time. The ruling came from “Federacion de Servicios Privados v Tyco Integrated Security” – concerning staff at a Spanish security company. But, because the ruling covers the EU’s Working Time Directive, it also impacts how maximum weekly working hours and rest break entitlements are calculated.
The ruling means you have to count this travelling time as “working time” for your workers – although this doesn’t necessarily entitle them to extra pay. Whether working time is paid for or not is a separate issue governed by the contract of employment and the National Minimum Wage (NMW).
If you think the legislation might be relevant to your business, ask yourself the following questions:
- Taking into account travel time, have you made sure no one is exceeding the 48-hour limit but who hasn’t opted out of the EU working time directive?
- Are all your employees getting a daily rest period of 11 hours between the end of one day’s working time and the start of the next working day?
- Is everybody getting rest periods of 24 hours consecutive non-working time?
- If they now work more than six hours, are they getting their 20-minute breaks?
If the answer to any of these questions is no, then you are breaking the law.
What are my obligations under the working time regulations?
The Working Time Regulations (1998) implement the European Working Time Directive into UK law. These regulations apply to both part time or full-time workers, including the majority of agency workers and consultants.
The law requires that you as an employer to ensure
- The average working week for each person is restricted to 48 hours, unless they have voluntarily opted out of the legislation
- Employees get paid annual leave of 5.6 weeks’ a year
- Each individual has an 11 consecutive hours’ rest period in any 24-hour period, even if you have an opt out in place
- Any person who works for longer than six hours takes a 20-minute rest break (you do not have to pay for this)
- Each person has one day off each week, or, if an opt out is in place, a 48 hour break across a 2 week period
- Night workers’ shifts average eight hours in any 24-hour period, and that they receive regular free health assessments
- Young workers (under 18) do not work more than eight hours per day and 40 hours per week, and receive a rest break of 30 minutes if their work lasts more than 4.5 hours. They must take a two day break each week, and cannot opt out of the working time directive
The average working week when calculating an average is a 17-week reference period, although a differing period can be agreed with your workers.
How the opt out works
In the UK, adults retain the right to opt out of the directive, and can reverse their decision by giving you at least seven days’ notice (you can ask for up to maximum of three months). This notice period should be agreed with new starters as part of your induction process.
It is important to note that an opt-out cannot be a conditional part of a job offer or continuation of employment. It must be voluntary. But, once agreed, it does offer greater level of flexibility to accommodate variance in work. It allows for you, to offer additional work and pay over 48 hours, So often be mutually beneficial.
A frequently asked question – who is a night worker?
A night worker is someone who generally works at least three hours during the period between 11pm to 6am. Once this status is confirmed, they should not work more than an average of eight hours in 24-hour period. This average is usually calculated over a 17-week reference period, and you cannot opt out of it.
The law also states that you must offer all workers a free health assessment before they become a night worker and then on a regular basis while they are working nights. Workers can refuse a health check, but depending on your health and safety procedures and risk assessment policy, you may have identified it as a necessary control measure and might need to override this.
Finally, what is a compensatory test?
In short, this an agreement for a worker to exceed their usual working hours but be compensated at a later date. For instance, a worker may be required to work during a rest period and take a rest later. Or work beyond their finish time to complete a job and take the time back on another day. This is known as compensatory rest, and is normally the same length of time as the additional hours worked.
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