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9. Enforcement
The WTR regulations provide workers with a mixture of entitlements that can be upheld by complaint to a tribunal and duties on employers that are enforceable by relevant authorities (see table below).
The “relevant requirements” to be enforced are set out in WTR 28 (as amended) while rights that can be remedied through a tribunal are set out in WTR 30 (as amended). Parallel regulations covering specific groups of workers make their own arrangements for enforcement.
Rights for remedy at tribunal include:
• Daily rest
• Weekly rest
• Rest breaks
• Annual leave
• Compensatory or Adequate rest where excluded from daily or weekly rest or rest breaks
• Young workers in armed forces: Night work compensatory rest
• Young workers: Night work compensatory rest
• Young workers: Compensatory or Adequate rest where excluded from daily or weekly rest or rest breaks
Duties enforceable (relevant requirements):
• Maximum weekly working time limit
• Young workers’ working time limits
• Night work limits
• Young workers: Night work; night work supervision
• Health assessments for night work
• Transfer from night work
• Pattern of work rest breaks
• Record-keeping
• Compensatory or Adequate rest where excluded from night work limits
Enforcing employer duties
The WTR regulations as originally implemented were enforced either by local authorities or the Health and Safety Executive (HSE). But when the regulations were extended in 2003 and parallel regulations were introduced, the range of enforcement bodies was expanded to include the Civil Aviation Authority (CAA), the Vehicle and Operator Services Agency/NI Driver and Vehicle Testing Agency (VOSA/ DVTA), the Maritime and Coastguard Agency (MCA) and the Office of Rail Regulation (ORR). The boundaries between these different authorities may not always be clear (see table) but in civil aviation the HSE and CAA have developed a Memorandum of Understanding in this issue.
The different enforcement bodies are given a range of powers under the WTR or parallel regulations, such as the power to request information, carry out inspections, require improvement, impose penalties and prosecute. However, they have been criticised for adopting a “light touch” and union reps may have to make the first move if they want to see employer duties enforced.
Bodies enforcing employer obligations
| Body | Telephone | Main sectors covered |
|---|---|---|
| HSE | 0845 345 0055 | Factories, building sites, mines, farms, fairgrounds, quarries, chemical plants, nuclear installations, offshore installations, schools, hospitals and in relation to certain mobile workers in road transport (employed taxi drivers and couriers). |
| Local authorities | Offices, shops, retail and wholesale distribution, hotel and catering establishments, petrol filling stations, residential care homes, sports and the leisure industry. | |
| VOSA (and DVTA) | VOSA 0870 606 0440 or DfT 0207 944 8300 or DVTA 028 9025 4100 | Mobile workers covered by the GB domestic drivers’ hours rules (in relation to working time limits and night worker health or assessments under the WTR regulations) and mobile workers covered by the European drivers’ hours rules or the AETR agreement (these are workers covered by the RTR regulations, see page 6). |
| CAA | DfT Aviation Directorate 0207 944 5881 | Mobile workers who work in general aviation including the general aviation corporate sector. |
| ORR | 0207 282 2000 | Railways |
| MCA | 02380 329100/209 | Seafarers, fishing workers, inland waterways |
Tribunals
The HSE and other enforcing bodies do not enforce rights to time off, rest break entitlements or paid annual leave entitlements. Workers with a grievance on these issues have to take their case to a tribunal. Appeals against rulings of tribunals (if they are believed to have wrongly applied the law) go to the Employment Appeal Tribunal (EAT) and then on to the Court of Appeal and ultimately the House of Lords.
A case can also be referred to the European Court of Justice (ECJ) at any stage for a ruling on the application of European law.
Victimisation
The WTR regulations provide workers with the right not to be subjected to any detriment for refusing a requirement imposed in contravention of the regulations or refusing to forgo a right conferred by the regulations (WTR 31). This includes refusing to sign a workforce agreement. It is also automatically unfair dismissal for an employee to be dismissed for asserting his or her rights under the regulations (WTR 32)
Negotiating points
• Check to see if the issues you are concerned about depend on a tribunal complaint or might be pursued by an enforcing body.
• Check to see what arrangements your union has in place for pursuing tribunal claims.
• Identify which enforcing body is relevant to your employer.
• Use the guidance published by BERR, the DfT, the enforcing authority, any relevant employer organisations and your own national union.
• Government consultation documents and Regulatory Impact Assessments (RIAs) are useful too.
• The regulations themselves are very helpful (and often include explanatory notes at the end) but have been amended many times, and it can be difficult to identify the latest wording (especially for the main WTR).