3. Who the regulations apply to

With the extension of the Working Time Regulations (WTR) to previously excluded sectors in 2003 and the development of parallel regulations for other groups, almost everyone should now be covered by working time limits and/or minimum rest periods. However, these limits apply in different ways to many separate groups.

Workers

The WTR regulations apply to “workers” rather than just “employees”. This means they cover any worker who has entered into or works under a contract of employment or any other contract under which “the individual undertakes to do or perform personally any work or services for another party” who is not the individual’s “client or customer” under the contract. For agency workers who meet these criteria the regulations apply “as if there were a worker’s contract” between the worker and whoever is responsible for paying them (WTR 36).

Department for Business, Enterprise and Regulatory Reform (BERR) guidance explains that this means:

“Someone who has a contract of employment, or someone who is paid a regular salary or wage and works for an organisation, business or individual. Their employer normally provides the worker with work, controls when and how the work is done, supplies them with tools and other equipment, and pays tax and National Insurance contributions. This includes part-time and temporary workers and the majority of agency workers and freelancers”.

Someone doing in-house training or a trainee on work experience is also a worker.

Deciding who this definition applies to can be very important if workers are to benefit from the protections provided by the regulations. Broadcasting union BECTU has told its freelance members: “If your work schedule is determined by an employer, then you are covered by the Working Time Regulations including the right to paid holidays”. Building workers, supported by construction union UCATT, have successfully argued that although classed as self-employed, there was enough of a contractual relationship to show that they were “workers” (Byrne Bros v Baird [2002] IRLR 96). Someone in business on their own account is an independent contractor and has no entitlement under the WTR regulations.

There may be uncertainty over the position of temporary “bank” staff, those with more than one contract and agency workers. This has more to do with whether they are used to “circumvent” the regulations (e.g. by having more than one job, see page 31) and how their rights to holiday pay apply, since they are covered by the WTR regulations. There are specific rules covering crown employees, parliamentary staff, the armed forces, police, and agricultural workers (WTR 37-43).

Under the RTR road transport regulations a worker is anyone who provides work or services under a contract, whether this is express or implied. The regulations cover agency workers who don’t have a worker’s contract (RTR 14). Department for Transport (DfT) guidance points out that the agency or employment business is responsible for monitoring their work and keeping appropriate working time records unless they are paid directly by and have a contract with the hirer (who then monitors working time and maintains records):

“Where no written contract of employment exists, whoever directly pays the worker in respect of work undertaken will be regarded as the employer for the purposes of the Regulations”.

Most of the RTR regulations apply to individuals carrying on a trade or business (RTR 15). Amendments in 2007 made it clear that they (not self-employed drivers or agency workers within the meaning of Regulation 14) are treated as if they were both a mobile worker and the employer of that mobile worker.

Self-employed

Department for Business, Enterprise and Regulatory Reform (BERR) guidance says that self-employed people, running their own business and free to work for different clients and customers are not covered by the WTR regulations. But deciding whether this is the case or not can depend on the details in each case, such as the paperwork (e.g. job advertisement, contract); provision of equipment; whether they can provide a replacement to carry out the work; use of helpers; financial risk; eligibility for sick pay or holiday pay; their expenses; and tax and National Insurance.

In the fishing industry self-employment is common. The industry Code of Practice on working time suggests limits on working hours in the FVR regulations could provide a useful benchmark for self-employed fishermen.

The RTR road transport regulations use a narrower definition of self-employment than to that used for the Employment Rights Act 1996 and the WTR, referring to a driver “who is entitled to work for himself and is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom, individually or through a co-operation between self-employed drivers, to have commercial relations with several customers” (RTR 2). From March 2009 such self-employed drivers are covered by RTR (having been excluded up to that point).

Mobile workers

Amendments to the WTR regulations in 2003 extended coverage to most workers in the formerly excluded sectors but also introduced the concept of mobile workers. They are excluded from daily and weekly rest periods, rest breaks and night worker working time provisions (WTR 24A(1)) but entitled to adequate rest (WTR 24A(2)) (see page 44). A mobile worker as defined under WTR 2(1) (as amended) is any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road or air. However, most mobile workers in civil aviation are covered by the CAR regulations. Rail workers, offshore workers and those on on urban passenger transport services are dealt with under “special case” exclusions (see page 21).

Seafarers

Seafarers are among those excluded completely from the WTR regulations (WTR 18(1)(a)),and are covered instead by the MerchantShipping (Hours of Work Regulations) 2002 SI 2002 No.2125 (based on the Seafarers’ Directive and Seafarers’ Enforcement Directive). These SHWR regulations apply to any person employed or engaged in any capacity on board a sea-going ship (as defined) on the business of the ship (SHWR 2). Workers whose normal place of work is onshore are covered by the WTR regulations instead. No person aged under 16 is allowed to work on a ship. Provision for medical examinations was implemented through the Merchant Shipping (Medical Examination) Regulations 2002 while elements of the pre-existing 1997 safe manning regulations remained in force alongside the new regulations.

Fishing and inland waterways workers

Workers on board sea-going fishing vessels and those on board a ship or hovercraft carrying passengers or goods by inland waterway or lake transport are among those excluded from the WTR regulations (WTR18(1)(a)). Fishing workers are covered instead by the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (SI 2004 No. 1713), referred to in this booklet as FVR. They apply to UK fishing vessels wherever they may be. Inland waterways workers are covered by the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (SI 2003 no. 3049) referred to in this booklet as IWR. These regulations apply to UK ships not allowed to go to sea and non-UK ships operating in UK inland waters. Ships going to sea for emergency or exceptional trips would follow either the IWR or SHWR regulations, whichever are most appropriate.

Civil aviation

Mobile staff covered by the Civil Aviation Directive are excluded from almost everything in the regulations (WTR 18(2)): the average 48-hour limit (WTR 4(1) and 4(2)); night workers’ hours limits (WTR 6(1), 6(2), 6(7)); pattern of work rest breaks (WTR 8); daily rest for adult workers (WTR 10(1)); weekly rest for adult workers (WTR 11(1) and (2)); in-work rest breaks (WTR 12(1)); and paid annual leave (WTR 13 and 16).

The Civil Aviation Directive was implemented through the Civil Aviation (Working Time) Regulations 2004 (SI 2004 No. 756), referred to in this booklet as CAR. It covers crew members on board a civil aircraft flying for the purposes of public transport. Non-UK based airlines and the corporate aviation sector were excluded (despite union objections), the latter still being covered by the WTR (along with air traffic services staff and maintenance workers).

Road transport

Workers covered by the road transport directive are excluded from many but not all of the WTR’s provisions by Regulation 18 (4): the average 48-hour limit (WTR 4(1) and 4(2)); night workers’ hours limits (WTR 6(1), 6(2), 6(7)); pattern of work rest breaks (WTR 8); daily rest for adult workers (WTR 10(1)); weekly rest for adult workers (WTR 11(1) and (2)); and in-work rest breaks (WTR 12(1)). These workers still qualify for annual leave and night worker health assessments under WTR.

The Road Transport (Working Time) Regulations 2005 (SI 2005 No. 639) (RTR) apply to workers in goods vehicles over 3.5 tonnes, passenger coaches and inter-urban bus services (excluding regular passenger services on routes not exceeding 50km). These workers are in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account. This includes drivers, crew and other travelling staff (e.g. porters in household removals, draymen in brewery deliveries, conductors on inter-urban bus services, trainees and apprentices) who operate vehicles subject to the European drivers’ hours rules (EC No 561/2006) or, in some cases, the AETR (a 1970 European agreement concerning crews engaged in international road transport).

The RTR regulations apply to self-employed drivers from March 2009. Other road transport workers not covered by the road transport directive still come fully under the WTR regulations(mobile worker provisions, see page 18). They work in smaller goods vehicles and vans and on local bus services. These workers may also be affected by the GB drivers’ hours rules (in part VI of the Transport Act 1968, as amended).

Mobile workers who only occasionally carry out RTR “in-scope” work are not required to comply with the RTR regulations although the European drivers’ hours rules continue to apply. Occasional mobile workers (for the purposes of RTR) work 10 days or less within the scope of the European drivers’ hours rules in a reference period of less than 26 weeks (15 days or less in a reference period of 26 weeks or longer). Like others excluded from RTR, they come under the WTR regulations as they apply to mobile workers (see page 18).

Workers who “inevitably conflict”

Under WTR, workers whose characteristics “inevitably conflict” with the regulations such as the armed forces, the police and civil protection services are effectively excluded from all the key provisions of the regulations (Regulation 18(2)).

Public services union UNISON has argued that the duties of its members in those services do not conflict with the regulations while the Police Federation has said that the exclusions “should only apply in exceptional circumstances”. This stance has now been backed up by the European Court of Justice (ECJ) in the case of Red Cross rescue workers. It held that emergency workers are not dealing with events that are unforeseeable, so they are covered (Pfeiffer v Deutsches Rotes Kreuz [2005] IRLR 137).

Special case exclusions

The main WTR regulations apply “special case” exclusions to workers in a range of activities. Following amendments introduced in 2003 this category now includes offshore workers, doctors in training, workers in urban transport services and certain workers on the railways (see below), under WTR 21. Workers affected are still limited to the average 48-hour working week and still entitled to four weeks’ paid leave and night worker health checks. However, they are excluded from night workers’ hours limits (WTR 6(1), 6(2), 6(7)), daily rest for adult workers (WTR 10(1)), weekly rest for adult workers (WTR 11(1) and (2)) and in-work rest breaks (WTR 12(1)) subject to receiving compensatory rest under WTR 24 (see page 49).

Special case exclusions apply to workers:

• where their activities are such that their place of work and place of residence are distant from one another (this now includes workers employed in offshore work) or the worker’s different places of work are distant from one another;

• those engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, “as may be the case” for security guards and caretakers or security firms;

• activities involving “the need for continuity of service or production, as may be the case” in relation to:

(1) services relating to the reception, treatment or care provided by hospitals or similar establishments (this now includes the activities of doctors in training), residential institutions and prisons;

(2) work at docks or airports;

(3) press, radio, television, cinematographic production, postal and telecommunications services and civil protection services;

(4) gas, water and electricity production, transmission and distribution, household refuse collection and incineration;

(5) industries in which work cannot be interrupted on technical grounds;

(6) research and development activities;

(7) agriculture; and

(8) this list now includes the carriage of passengers on regular urban transport services

• where there is a foreseeable surge in activity “as may be the case” in relation to agriculture, tourism and postal services;

• where the worker’s activities are affected by:

(1) an occurrence due to unusual or unforeseeable circumstances “beyond the control of the worker’s employer”;

(2) exceptional events which “could not have been avoided”; or

(3) accident or imminent risk of accident; and

This list now includes certain workers in railway transport (see page 23).

The wording refers to circumstances that “may” apply, indicating that this is not a blanket exclusion (WTR 21). Department for Business, Enterprise and Regulatory Reform (BERR) guidance suggests that the exclusions might apply to someone who “constantly has to work in different places making it difficult to work a set pattern” or is involved in “round the clock staffing”. The IWR inland waterways regulations have similar exclusions (IWR 14).

Guidance issued by the NHS Executive when the WTR regulations came into force indicated that the exception could not be applied across all sectors of the NHS “because it applies to the individual workers’ activities” (Supporting Guidance to HSC 1998/204, Working Time Regulations: Implementation in the NHS). An NHS Information Note on Exceptional Circumstances and Compensatory Rest (August 2006) said that exceptions should be construed narrowly.

The security industry is potentially affected but a tribunal case brought by GMB general union member Gavin Ruddick proved that security guards are not exempt from the WTR regulations. Unite (T&G) argues that security guards work unacceptably long hours and need the protection of the regulations.

Railways

Railway workers may be subject to special case exclusions (see above) where their activities are “intermittent”; they spend their working time on board trains; or their activities “are linked to transport timetables and ensuring the continuity and regularity of traffic”.

The RMT rail union has argued that wherever possible employers should not take advantage of the “special cases” exclusion. Instead it wants to negotiate modifications or exclusions through agreements within the collective bargaining machinery. ASLEF’s view is that the WTR regulations have little impact on train drivers, partly because of the existence of better industry practice and the Railways and Other Guided Transport Systems (Safety) Regulations 2006.

There have been concerns over fatigue in the railway sector since the Clapham Junction accident in 1988. The subsequent Hidden enquiry highlighted the consequences of regular weekend and seven-day working without rest breaks. It led on to the regulation of safety critical work, an approved Code of Practice and industry standards on rests and working time. The Office of Rail Regulation (ORR) points out that the provisions of the WTR “are not in themselves sufficient to prevent safety critical workers from working when they are so fatigued, or liable to become so fatigued, that their health or safety or the health or safety of other people on a transport system could be significantly affected” (www.rail-reg.gov.uk/upload/pdf/293.pdf).

Urban passenger transport

Workers in urban passenger transport (not defined by the regulations) are covered by special case exclusions (see page 21).

Offshore workers

Offshore workers as defined (WTR 2) are included in the list of special case exclusions (see page 21). The SHWR seafarers’ regulations cover those working on construction, supply and standby vessels and diving support vessels (other than divers).

Doctors in training

Doctors in training are included in the list of special case exclusions, along with other workers whose activities involve the need for continuity of service of production. They have had longer to adjust to the 48-hour week which only comes fully into force in 2009 (see page 26). They have a longer reference period (see page 28) and are also affected by the New Deal agreement which sets limits for work and rest.

Young workers

Young workers have specific rights under the WTR regulations, in particular the right to an eight-hour day and a 40-hour week (see page 26). They are defined as having “attained the age of 15 but not the age of 18” and being over compulsory school age. Young workers in the armed forces are excluded from the standard young worker provisions for a maximum working day/week and night work, although compensatory rest would apply (see page 49). Children are not covered (Addison t/a Brayton News v Ashby EAT 2003).

Domestic service

Those working in private households as domestic servants are excluded from the key limits on working time (WTR 19). However, they are entitled to the daily and weekly rest periods, rest breaks and annual leave.