2. What the regulations apply to

Defining working time is the starting point for limiting hours and ensuring adequate rest. The development of regulations covering mobile workers, together with rulings at the European Court of Justice regarding on-call time (see page 10) show that where you spend your time when fulfilling work commitments can be important too. Proposed future amendments to the EWTD would define the relationship between on-call and working time (see page 3).

Under the WTR regulations (WTR 2) working time is defined as:

• any period during which a worker is working, at the employer’s disposal and carrying out his or her activities or duties;

• any period during which s/he is receiving “relevant training”; and

• any additional period which is to be treated as working time under a “relevant agreement” (see page 57).

The agreement at Leyland Trucks defines working time as: basic contractual hours (excluding lunch times); overtime or AVD (banked hours) hours worked; and paid travelling time.

Negotiations needn’t just be about paid time although it is important to check that that the National Minimum Wage is being properly paid (see below). There may be circumstances (e.g. unpaid overtime or travelling time) where workers may not be paid or may not be paid their normal wage or salary but are effectively at their employer’s disposal.

Under the seafarers’ SHWR regulations the definition of hours of work is simpler, covering time during which a seafarer is required to do work on the business of the ship. The civil aviation CAR regulations include specific definitions of standby (when the crew member holds him or herself ready to act, see page 12) and block flying time.

The RTR road transport regulations define working time as the time from the beginning of work during which the mobile worker is at the workstation (see page 10), at the disposal of the employer and exercising his functions or activities. This includes non-driving activities such as loading/unloading, training as part of normal work, assisting passengers boarding/disembarking, cleaning and maintaining the vehicle and work to ensure its safety and administrative formalities.

RTR working time also includes time when the mobile worker cannot freely dispose of his/her time and is required to be at the workstation ready to take up normal work, including waiting periods where the foreseeable duration is not known in advance by the mobile worker, either before departure or just before the start of the period in question. However, waiting time, the duration of which is known about in advance by the RTR mobile worker, is designated as a Period of Availability (PoA) and not counted as working time.

A PoA isn’t restricted to time about which the mobile worker has been formally notified and can include time spent sitting next to the driver while the vehicle is in motion unless taking a break or performing other work such as navigation. There is no equivalent to PoA for drivers and other mobile road transport workers who come under the WTR regulations and unions see this as a major loophole in the RTR regulations.

National Minimum Wage Regulations and working time

The National Minimum Wage Regulations 1999 (SI 1999 No. 584) have been influential in a number of working time-related cases at the Employment Tribunal and Employment Appeal Tribunal (EAT). Regulations 2 to 10 define work as either “time work”, “salaried hours work”, “output work” or “unmeasured work”. Regulations 15 to 29 establish, for each kind of work, the hours for which the worker must be paid the national minimum wage and how the total number of those hours in a pay reference period is to be determined.

If work is defined as “unmeasured”the worker and employer can agree the average daily number of hours likely to be spent carrying out duties (provided that this is a realistic average). However, in 2003, a tribunal accepted that residential care workers were engaged on “salaried” rather than “unmeasured” work, and that this gave them a right to be paid under the National Minimum Wage Act 1998 (Davies and others v London Borough of Harrow). They worked 9am to 5pm Monday to Friday but also had to be on call from 5pm to 9am each weekday, and were paid a standby allowance.

In 2005 the EAT found in favour of a resident manager:

In reaching their decision on MacCartney, the EAT referred to ECJ judgements concerning on-call work but also to another UK case involving the minimum wage (British Nursing Association v Inland Revenue [2002] IRLR 480 (Court of Appeal)):

Place of work

Court rulings about on-call work (see below) mean that being on the employer’s premises (or not) can now help determine what counts as working time under the WTR regulations. Proposed amendments to the EWTD would include a definition of workplace. In road transport, Department for Transport (DfT) guidance on the RTR regulations explain that “workstation” means in and around the vehicle, at the employer’s premises and other places where the mobile worker might work (e.g. customer’s site). The SHWR seafarers’ regulations define what kind of ships are covered while CAR aviation regulations define what kind of aviation activity is covered. For mobile workers who work on shore for part of their working time this is included under the IWR regulations.

Time on call

Successive rulings at the European Court of Justice (ECJ) have established that on-call work counts as working time if the worker is physically present at a place specified by the employer, even if this includes periods of inactivity or sleeping. The key cases are:

• SiMAP: Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] IRLR 845;

• Jaeger: Landeshauptstadt v Jaeger [2003] IRLR 804; and

• Pfeiffer: Bernhard Pfeiffer and Others v Deutsches Rotes Kreuz C-397/01-C-403/01.

Research suggests that on-call work may play a role in increasing stress and decreasing mental well-being by affecting the quality and quantity of sleep, with workers having problems relaxing and being left feeling tired (Environmental Health Journal (Canada), December 2004). Fatigue guidelines published by the Office for Rail Regulation highlight the uncertainty of on-call work which makes it difficult to plan suitable sleep time: Fatigue is more likely as a result.

The European Court of Justice (ECJ) approach to on-call time has been taken into account at UK tribunals and the EAT. A hotel worker required to stay overnight should have had those hours counted as working time (Anderson v Jarvis Hotels plc EAT/0062/05); and a live-in hotel worker who could be interrupted at any time (except for her limited hours off) and was not free to come and go was counted as working (Vasquez-Guirado and Vasquez-Howard t/a The Watermeadows Hotel v Wigmore UKEAT/0033/05).

These judgements have also been acknowledged in Department for Business, Enterprise and Regulatory Reform (BERR) guidance on the WTR. A Department of Health information note for NHS doctors confirms that their entire on-call period counts as working time — whether or not they are working. Local authority employers have been advised that sleep-ins count towards the average weekly working time limit of 48-hours, and that no part of the sleep can count towards the 11-hour daily rest period (EO Advisory Bulletin 472, September 2003).

A survey of members of public services union UNISON who sleep at the workplace as part of their job, found almost all were required to be on the premises throughout their shift. Nearly two-thirds (63%) would face disciplinary action or dismissal if they left their workplace during a sleeping-in period, but 86% were paid below the National Minimum Wage while sleeping and 72% received payments that were only “activated” if they were called on to work during a sleeping-in period.

Separate research among youth work employers for CYWU-Unite, focusing on weekend residential trips found that few were prepared to allow time off in lieu for all of the time spent away — including sleeping time — even though workers could potentially be called on at any time to care for the young people they were with. Nottinghamshire is an exception and a national agreement on this issue is being negotiated.

In the review of the EWTD proposed future changes could split on-call time into “active”and “inactive” parts linked to a cap on overall hours worked (see pages 3-4), undermining these ECJ judgements. However, any changes could be some years off. NHS employers have been advised to continue to plan to implement the directive for doctors in training based on current legal interpretations.

Under the CAR civil aviation regulations rest days are defined as days free of all employment duties including standby and it is accepted that all standby duty is counted fully against the individual’s total annual working time limit whether called in for duty or not. Amendments being considered would continue to count time spent on standby as half duty time when undertaken at home, between 10pm and 8am (and the worker is able to take undisturbed rest and is not called out for duty).

But under the SHWR seafarers’ regulations, a seafarer who is on call on board ship is only entitled to an adequate compensatory rest period if his/her normal period of rest is disturbed by call-outs to work. In a case involving a ship’s captain, the EAT held that that cases decided under the Working Time Directive had no application to seafarers (P&O Ferries (Bermuda) Ltd v Mr DE Spencer, UKEAT/0433/04/CK, February 2005).

Unmeasured work

Under the WTR regulations workers on “unmeasured working time” are excluded from the maximum working week limits, night work limits and rest periods/breaks (WTR 20). This applies to working time that is not “measured or predetermined” because of “the specific characteristics of the activity” in which workers are engaged, or where workers can determine the duration of working time themselves.

Examples include managing executives or other persons with “autonomous decision-taking powers”. The exclusions also apply to “family workers” and workers officiating at religious ceremonies in churches and religious communities. This approach was extended to workers whose work is partly unmeasured but that has now been revoked.

Senior managers deemed to be “self-directed” are among those most likely to be affected by the unmeasured work exclusion, often working long hours without any mechanism for recording this. Other workers may be affected by work going unrecorded or unrecognised but for the unmeasured work exclusion to apply, the definition in WTR 20 must be met. Department for Business, Enterprise and Regulatory Reform (BERR) guidance says that no-one can be forced to work more than an average of 48-hours a week and the exception “does not remove this protection from any worker”.

Travelling time and work abroad

BERR guidance on the WTR regulations says that where a worker has to travel as part of his or her work, for example a 24-hour mobile repairman or a travelling salesman, this should be counted as working time. That also goes for time spent abroad if a worker works for an employer who carries on business in Great Britain although it does not include routine travel between home and work, or time spent travelling outside normal working time.

Union reports indicate that practice on travel time varies from company to company and depends partly on whether employers are prepared to pay for it (which some clearly are). Rail unions, whose members are covered by the WTR regulations, want working time to include travelling time, as do offshore unions whose members spend a lot of time travelling between the heliport and the offshore installation.

The European drivers’ hours rules identify time spent travelling to a vehicle that is not at home nor at the employer’s operational centre as neither a rest or a break.

Breaks and working time

BERR WTR guidance says that working lunches such as business lunches count as working time, but rest breaks when no work is done do not. If union reps can show, however, that workers are actually at their employer’s disposal and carrying out his activities or duties (or receiving relevant training) breaks could count as working time. It is also open to unions to negotiate a relevant agreement to treat “any additional period” as working time, although they will need to ensure that workers get their rest breaks under the regulations (see Chapter 6, page 42). A rail company employee’s rights were breached by being on call and having to listen to a radio while taking a break (London Central Tribunal case number 2203405/2004, Holland v Heathrow Express Operating Company).

Other working time

A worker is regarded as working when undertaking training that is job-related, this should apply also to time spent working at home, on a basis previously agreed with the employer, when records should be kept. It is open to unions to negotiate on what else might count as working time (e.g. seminars and conferences, study leave, time employed on trade union and related activities).

Keeping records

Under the WTR regulations employers are required to keep records “which are adequate to show” compliance with the 48-hour week, young worker working time limits, night work limits, rules on young workers and night work (the restricted period), the provision for night worker health assessments and assessments of health and capacities of young night workers (WTR 9). Unions may want reassurance that managers at all levels are keeping a track of working time and that the records kept are accurate.

BERR says that employers are free to decide what records need to be kept for this purpose and could use existing records maintained for other purposes, but they must be kept for two years. They do not have to keep a running total of how much time employees work on average but are advised to “monitor the hours of workers who appear to be close to the working time limit”. With regard to the opt-out they are also told:

“You need to keep an up-to-date record of workers who have agreed to work more than 48-hours a week, but you do not need to record how many hours they actually work”.

Record-keeping requirements are also set out in parallel regulations. In CAR, RTR and SHWR they require employers to provide information to enforcement bodies if requested (e.g. watchkeepers and other seafarers working at night, aircraft crew members’ working patterns). There are also record-keeping commitments under the drivers’ hours rules.