Introduction

Ten years on from the first implementation of the European Working Time Directive (EWTD) in the UK, the slow decline in the number of people working more than 48-hours a week has been reversed. The TUC reports that more than one in eight workers (3.3 million) has been putting in more than 48-hours a week (12.9%), rising to one in six in London (17.1%). A review of road transport showed some evidence of shorter hours but this still left 45% of HGV drivers working over 48-hours per week on average (05/06 figure). And in 2007 researchers found that almost half of full-time civil servants were exceeding their contracted hours by having to work 40 to 48-hours a week — with one in 20 breaking the Working Time Regulations by working 49 hours or more.

The association between long hours, fatigue and accidents is now recognised but, as the Health and Safety Executive (HSE) has shown, long hours may also be associated with stress, mental ill health and negative effects on physical health (e.g. cardiovascular disorders):

“The legal duty is on employers to manage risks from fatigue, irrespective of any individual’s willingness to work extra hours or preference for certain shift patterns for social reasons”.

EWTD under review

The EWTD has been under review since 2004. A meeting of EU member states at the Employment and Social Affairs Council on 9 /10 June 2008 reached a political agreement on future amendments to the EWTD. The TUC described this as “a very mixed bag” and it is not the final decision. There may be further change, (at the European Parliament for example) and if/when amendments to the EWTD are agreed they may not apply until 2012.

The main points of agreement on proposed changes to the EWTD:

• on-call time could be split into active and inactive on-call time with active on-call time at the workplace counted as working time;

• inactive on-call time would not be counted as working time (but not as rest either) unless national laws or social partners agree;

• standard maximum limit remains at 48 working hours per week but individual workers could still opt-out;

• new protective limit (cap) for workers who opt-out: maximum working week of 60 hours averaged over three months (65 if inactive on-call time counted as working time) unless social partners agree otherwise;

• the cap would not protect workers employed for less than 10 weeks with one employer;

• opt-out is only under certain conditions such as: no signature during first four weeks of employment, employers must keep records on working hours of opted-out workers, valid for one year only (renewable), easier to opt back in; and

• more scope for six-month reference period for 48-hour week (12-months if Member State doesn’t use the opt-out); compensatory rest to be taken within a reasonable period; notice of changes to working patterns and examination of worker requests to change working hours and patterns.

As none of these changes has been implemented, trade unions can insist that the existing regulations and case law continue to apply.

Impact

The impact of these regulations may not be felt in every workplace — negotiated standards may already be higher, existing regulations and guidelines may be more exacting, and some members may be looking to maximise working time in order to boost earnings. The regulations have also been too easy for employers to evade and subject only to a “light touch” by enforcement agencies.

But the many legal challenges that have been made under the regulations, often dealing with rest periods, breaks and levels of holiday pay, show that they can have an impact. Those most in need of protection may be those on the fringes of the workplace (agency workers, temps, those working for contractors), or be migrant workers or be in jobs where there is a culture of long hours working.

1. The UK regulations

As a result of the extension of the EWTD directive to formerly excluded sectors, and parallel directives, all of which have been implemented in the UK, we now have a “family” of working time regulations covering almost every part of the workforce.

In implementing these directives the UK government has made extensive use of the flexibilities (derogations) available. Since regulations were first introduced, there have been amendments affecting what counts as working time, introducing specific protections for young workers, and extending the regulations to previously excluded groups.

Changes have often followed on from important rulings, particularly at the European Court of Justice (ECJ), over the interpretation of the law. These have had an impact on issues like “rolled-up holiday pay” (page 55), guidance on the requirement to have rest breaks (page 47), and whether on-call work counts as working time (page 10).

As a result of union pressure, the UK government has recently amended the regulations to extend minimum holiday entitlement to 5.6 weeks, while ensuring that the law applies to offshore gas and oil rigs (where employers had resisted its implementation).

Most union reps who have to deal with issues of working time, night work, breaks, minimum rest and paid annual leave will be looking to the main Working Time Regulations 1998 (SI 1998 No.1833) referred to in this booklet as WTR. Equivalent regulations have been introduced in Northern Ireland (starting with the Working Time Regulations (Northern Ireland) 1998 SR 1998 No. 386).

Record-keeping requirements in WTR were relaxed by the Working Time Regulations 1999 (SI 1999 No. 3372). Working time limits on workers whose work was only partly measured or pre-determined were also relaxed but this change was revoked in 2006. The service requirement for annual leave was scrapped and accrual arrangements introduced under the Working Time (Amendment) Regulations 2001 (SI 2001 No. 3256). The following year parallel regulations for seafarers were introduced, the Merchant Shipping (Hours of Work) Regulations 2002 (SI 2002 No.2125) referred to in this booklet as the SHWR regulations and amended in 2004 to include tug workers.

Working time limits for young people were implemented by the Working Time (Amendment) Regulations 2002 (SI 2002 No. 3128) which came into force in 2003. These also added periods of paternity, adoption or parental leave to the calculation of working time (alongside maternity leave); and revoked the exclusion of overtime from night worker’s normal hours.

The general exclusion of a range of workers ended with the Working Time (Amendment) Regulations 2003 (SI 2003 No.1684) affecting sectors where health and safety risks are particularly acute, where hours of work can nevertheless be long. But WTR provisions continued not to apply at all to workers on sea-going fishing vessels, or workers on certain ships and hovercraft on inland waterways, and hardly at all to crew members on board civil aircraft where parallel regulations apply. WTR provisions covering other mobile workers are limited in various ways, as the booklet explains.

Parallel regulations for the UK’s small mobile inland waterways workforce were provided by the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (SI 2003 no. 3049) referred to in this booklet as IWR. Parallel regulation was also provided by the Civil Aviation (Working Time) Regulations 2004 (SI 2004 No. 756) referred to in this booklet as CAR. In addition to working time limits, CAR also requires adequate health and safety protection and prevention services or facilities for mobile civil aviation workers.

The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (SI 2004 No. 1713), referred to in this booklet as FVR, implemented the EWTD directive on sea-going fishing vessels (accompanied by a Code of Practice). The final piece of parallel regulation came with the Road Transport (Working Time) Regulations 2005 (SI 2005 No. 639), referred to in this booklet as RTR, which implemented the road transport directive affecting goods or passenger vehicles covered by the existing European drivers’ hours rules.

An earlier misinterpretation of the law by the UK government was corrected when the Working Time (Amendment) Regulations 2006 (SI 2006 No. 99) revoked changes introduced in 1999 concerning working time that was partly unmeasured or determined by the worker. The Working Time (Amendment) (No.2) Regulations 2006 (SI 2006 no. 2389), effective from 1 October 2006, confirmed the inclusion of offshore workers in the WTR. Improved minimum annual leave entitlements were introduced through the Working Time (Amendment) Regulations 2007 (SI 2007 No. 2079).

Other regulations and guidelines

Professional drivers in the UK were already covered by either the European drivers’ hours rules or the GB drivers’ hours rules (separate rules apply in Northern Ireland). The European rules (replaced on 11 April 2007 by a new EU Regulation EC No. 561/2006) cover daily, weekly and fortnightly driving hours limits, breaks from driving, and daily and weekly rest.

On the railways, the Railways and Other Guided Transport Systems (Safety) Regulations 2006 (ROGs) prevent a worker from carrying out safety critical work in circumstances “where he/she is so fatigued or where he/she would be liable to become so fatigued that his/her health or safety or the health or safety of other persons on a transport system could be significantly affected”.

Guidance from the Office for Rail Regulation calls for measures to manage the risks arising from fatigue including consultation with workers and their representatives, records, clear and relevant information, monitoring and ensuring that workers who are “clearly unfit owing to fatigue” do not carry out critical work. The sector will also be affected in future by the transposition of the Crossborder Regulations (Council Directive 2005/47/EC).

In the fishing industry there is a Code of Practice on working time, under the FVR regulations. In civil aviation, also affected by the UK Air Navigation Order (ANO) 2005 (SI 2005/1970), flight time limitations are set out in the Civil Aviation Publication CAP 371, The Avoidance of Fatigue in Aircrews. Where there is conflict with the CAR regulations, flight safety limitations take precedence.

The National Minimum Wage Regulations 1999 have also been influential in interpreting what counts or not as working time. These regulations could become even more important in the future (see page 9).