4. Limiting working time

Working time can be controlled by limiting the hours worked per week, month or year, or by adhering to a minimum amount of rest. The average 48-hour limit on the working week is one of the main provisions of the Working Time Regulations (WTR), although the individual opt-out has weakened it. Other regulations and guidelines usually apply equivalent but not necessarily identical limits on working time. Proposals for future amendments to the EWTD directive would retain the opt-out subject to a cap on working hours and other limits (see pages 3-4).

Setting the limit on working time

Under the main WTR regulations (WTR 4, as amended in 1999), unless the employer has “first obtained the worker’s agreement in writing” a worker’s working time, including overtime, in any reference period which is applicable shall not exceed an average of 48- hours for each seven days. Employers are required to take “all reasonable steps, in keeping with the need to protect the health and safety of workers” to ensure that this limit is complied with. This means that, unless they have signed an opt-out agreement (see page 31), workers cannot be forced to work more than an average of 48- hours a week (Barber v RJB Mining [1999] IRLR 308).

The WTR average working time limit for doctors in training is being phased in, falling to 56 hours from 1 August 2007. NHS preparations for the 48-hour limit (from 1 August 2009) see junior doctors’ working patterns being changed, posts rebanded, and a raft of measures to reduce hours. In addition to the WTR, doctors are covered by the New Deal agreement (see page 28).

Young workers

Under the 2002 WTR amendments (in line with Council Directive 94/33/EC) a young worker’s maximum working time may not exceed eight hours a day or 40 hours a week (WTR 5A). These limits on working time are not average figures. A week is defined as starting at midnight between Sunday and Monday. The employer must “take all reasonable steps” to ensure that the limits are complied with. The limits do not apply in the following circumstances (WTR 27A) :

• where the employer requires the young worker to undertake work which is “necessary either to maintain continuity of service or production or to respond to a surge in demand for a service or product”;

• where there is no adult worker “available to perform the work”; and

• where performing the work “would not adversely affect the young worker’s education or training”.

The daily and weekly hours limits do not apply for young workersin domestic service, neither do they apply in emergency situations (“force majeure”), although in that case the young workers would be entitled to compensatory rest (see page 49).

Parallel regulations limiting working time

Like WTR, parallel regulations on the inland waterways (IWR) limit working time for mobile workers to an average of 48-hours per week as do the fishing regulations (FVR). In fishing, the Secretary of State has the power to grant exceptions to the maximum working week either in individual cases or in “classes” of cases for objective or technical reasons or reasons concerning the organisation of work (FVR 13). This may take account of the granting of compensatory leave periods. Under FVR workers may also be required to work any hours necessary for the immediate safety of the vessel or people/cargo on board or to give assistance to other vessels or people in distress at sea (FVR 14). The Code of Practice for the fishing industry refers to an annual maximum of 2,304 hours.

But things are a little different for mobile workers in civil aviation and for those in road transport covered by the parallel regulations. Unlike WTR, CAR limits the working time of crew members to an annual maximum of 2,000 hours while restricting flying time to 900 hours. RTR sets a maximum weekly working time limit (including overtime) of 60 hours as well as an average of 48 hours over a reference period (RTR 4). And, unlike WTR, there is no individual opt-out from the RTR weekly limits. The SHWR regulations for seafarers do not limit maximum working time but rely on minimum hours of rest to regulate overall working time.

Other regulations and guidance

In road transport, the European drivers hours rules specify a daily driving limit of nine hours (which can be increased to 10 hours twice a week). Following amendments introduced on 11 April 2007 they also specify a weekly driving limit of 56 hours (90 hours in any two consecutive weeks). Break rules mean a limit on cumulative or continuous driving of four and a half hours (see page 48).

The GB drivers’ hours rules set a daily driving limit of not more than 10 hours and a daily duty limit of not more than 11 hours on any working day (and a 16-hour spreadover limit with off-duty periods during the day). A driver is exempt from the duty limit on any working day when he or she does not drive, or does not drive for more than four hours on each day of the week (those who drive less than this may be affected under certain circumstances). Some drivers are exempt from the rules or from these limits.

Doctors are covered by the New Deal agreement which limits maximum weekly duty hours, maximum actual weekly hours (56), maximum continuous duty hours (full shift, 14 hours), minimum time off between duties and minimum off-duty periods for the different shift patterns and for doctors on an on-call rota. Minimum rest provisions also apply, see page 47.

Reference period

Under the main WTR regulations the limit on the working week is applied as an average. That means it is legal to work for more than 48 hours on some weeks, so long as this is balanced out by weeks in which fewer hours are worked. The reference period is the length of time over which the average is calculated. The standard reference period is successive periods of 17 weeks (where there is a “relevant agreement” to this effect, see page 57) or otherwise a rolling reference period ie any period of 17 weeks (WTR 4). Proposed amendments to the EWTD provide more scope for a reference period of 26 weeks (see page 4).

The distinction between successive and rolling reference periods could be important where workloads are spread unevenly. The need for a successive reference period arrangement (under a relevant agreement) could provide the basis for negotiations, even where a longer reference period is not required. Where a worker has worked for his/her employer for less than 17 weeks, the reference period is the period that has elapsed since s/he started work for her/his employer.

Alternative reference periods

Extended reference periods allow employers more scope for periods when longer hours can be worked without breaching the 48 hour average. The 17-week WTR reference period can be replaced by period of 26 weeks (WTR 4(5)) for those workers affected by special case exclusions (see page 21) and this is the length of the reference period for doctors in training (WTR 25A).

The reference period for offshore workers is 52 weeks (WTR 25B). Under a relevant agreement this can be successive 52-week periods (otherwise it is any period of 52 weeks). In the amending Directive this longer reference period was subject to protection of safety and health, and consultation or negotiation, but this wording did not make it into the UK regulations.

A reference period of up to 52 weeks can also be used to average out working time under a collective or workforce agreement (WTR 23B). This should provide employers with ample opportunities to set up suitable work patterns, e.g. annualised hours, hours-banking or working time “corridor” arrangements (where hours can be increased to an agreed higher level when workloads require it).

Under the IWR inland waterways regulations where tourism and seasonal variations affect workload there is no individual opt-out from the 48-hour week limit (see page 31). The reference period can be extended to 26 weeks where there is a foreseeable surge in activity or up to 52 weeks by collective or workforce agreement (where there are objective or technical reasons, or reasons concerning the organisation of work, justifying a longer reference period).

Under the road haulage RTR regulations, the reference period for the average 48-hour week is normally successive periods of 17 weeks where there is a collective or workforce agreement, or otherwise any period of 17 weeks. But as an alternative, three reference periodscan be accommodated into one calendar year (1 December-1April, 1 April-1 August, 1 August-1 December)(RTR 4(3)(c)).

The RTR reference period can be extended by collective or workforce agreement to a period not exceeding 26 weeks. Workers should be told which arrangement applies. DfT guidance points out that different reference periods can be agreed between different groups of workers in the same company, and an agreement may even allow different reference periods for certain individuals.

In fishing (FVR) the reference period is 52 weeks. The civil aviation CAR regulations have annual rather than weekly limits on working time and use a rolling 12-month reference period (compatible with the Air Navigation Order).

Calculating the 48-hour average

Department for Business, Enterprise and Regulatory Reform (BERR) guidance sets out a number of example calculations to show how working time can be calculated to determine if the average 48-hour weekly limit is being kept. But time off work has to be taken into account in calculating the average over the reference period.

Under the main WTR regulations, if the worker is away during the reference period because he or she is taking paid annual leave, maternity, paternity, adoption or parental leave, or is off sick this has to be allowed for in the calculation. This is done by adding hours worked during the days which immediately followed the 17-week period, using the same number of days as those when work was missed. It is open to negotiators to clarify how other periods off work will be handled.

The calculation is handled a little differently under the RTR regulations. Employers enter a notional 48-hours for each week of statutory leave and eight hours for each day of statutory leave taken off during the reference period, and for statutory sick leave, maternity, paternity, adoption and parental leave. However, if a rolling reference period is used, leave can be offset using the method used under the WTR regulations. DfT guidance says that the prescribed notional figures do not have to be included for time off for any other reason (e.g. jury leave, union duties, disciplinary suspension, leave beyond the statutory minimum) and this is something unions can negotiate.

More than one job

Workers with more than one job should still be covered by the working time limits. This is usually considered in relation to the 48-hour limit (unless they have signed an opt-out) but it is just as important to ensure that they get the rest they need too. Similarly, the daily and weekly limits apply to aggregate hours in the case of a young worker working for more than one employer. It is the employer’s duty to take all reasonable steps to see that these limits are complied with, but the responsibility for policing the limits often seems to be left to workers themselves.

BERR guidance on WTR suggests that if a worker is known to have a second job they should either be asked to sign an op-out or consider reducing their hours to comply with the 48-hour limit. Employers “may wish to make an enquiry” of their workforce about additional employment, but if a worker doesn’t tell the employer (and the employer has no reason to suspect) “it is extremely unlikely that the employer would be found not to have complied”.

DfT guidance on the RTR regulations says that the worker must inform employers in writing of the hours worked for another employer:

“Although most of the requirements for monitoring and keeping records lie with the employer, both the mobile worker and the employer share the responsibility for complying with the Regulations. Both employer and mobile worker are potentially liable for prosecution if the rules are systematically broken”.

For the purposes of these regulations working time does not include work performed for employers who are not involved in road transport (although time spent on bar work, for example, would count for compliance with the European drivers’ hours rules — see page 28).

Individual opt-out

Under the main WTR regulations, the individual opt-out only applies to the average 48-hour limit on the working week. It was permitted under Article 18(1)(b) of the European Working Time Directive (EWTD). Member states had to ensure that no employer “requires” a worker to opt-out without their written agreement, that no worker suffers detriment for refusing to opt- out, and that employers keep up-to-date records. Although seen primarily as an issue for the UK, some other EU member states began to make use of it following European Court of Justice rulings on on-call time (see page 10).

Originally implemented in Regulation 5 of the WTR, it is now part of Regulation 4, but the length of an individual opt-out agreement is still governed by Regulation 5 which says it can either relate to a specified period or apply indefinitely. It can be terminated by the individual worker, either after an agreed notice period not exceeding three months, or with not less than seven days notice in writing (where there is no agreed notice period). A record has to be kept by the employer showing that weekly and night work limits are being complied with (see page 28).

An employer cannot opt-out workers from the 48-hour working week through terms incorporated in a collective agreement. Each individual worker must freely agree to any opt-out with full knowledge of the facts (Pfeiffer v Deutsches Rotes Kreuz [2005] IRLR 137).

Evidence suggests that workers may be expected to sign opt-outs, or that they may be included as a standard term of employment contracts, with the issue being emphasised in recruitment, appointment and induction. Some employers may wrongly extend the opt-out to other issues like night work and rest periods, or insist on employees “opting in” to the working time limit: Neither of these practices complies with the regulations.

Other employers may overlook long-hours working, or simply expect workers to exceed the 48-hours weekly average without signing an opt-out or logging the additional hours. The individual opt-out is seen as major issue in particular sectors such as construction and the IT sector where many companies are said to routinely include opt-out forms with letters of appointment.

All this conflicts with the idea that there is always employee choice over the opt-out and only “a few isolated incidents” of employees being coerced into signing.

Guidance on WTR published by the Strategic Rail Authority in 2003 pointed out that even if a worker has opted out he or she must not be allowed to work excessive hours which might prejudice his or her own or others’ health and safety. It added that employers should not pressurise workers to sign an opt-out or victimise anyone who decides not to do so.

The British Medical Association points out that opting-out is not straightforward for junior doctors because they work in teams on a rota and don’t have control over their own working patterns: only those who have independent control over their working hours should be able to consider opting out. And in any case doctors can’t opt-out of hours limits that apply under the New Deal agreement (see page 28).

The future of the opt-out is one of the main issues at stake in the review of the EWTD directive and many of the proposals agreed at the Employment and Social Affairs Council on 9-10 June 2008 focus on it (see pages 3-4). They would allow it to continue subject to a range of conditions and a 60 or 65 hour cap on the hours of opted-out workers (averaged over three months). There would also be restrictions on opting-out in the first four weeks of a job but these safeguards would not apply to workers with less than 10 weeks’ service.

Managing without the opt-out

Employers may prefer not to rely on the opt-out. Collective bargaining on the various exclusions (derogations), like a longer reference period, may be preferable to them as well as to the unions (see page 28). Unions may be able to negotiate a specific uplift in basic pay in order to pave the way for a cut in long hours, although continued high levels of overtime working could undermine this objective.

At Leyland Trucks the collective agreement says:

“As it is the company’s intention to generally operate within the 48-hour regulations through existing agreements, accordingly opt-outs will not be sought from employees. If operational needs change discussions will take place with the ERC to resolve any issues arising. The Company will monitor working time to ensure that all staff operates within the limits of the Directive. The Chair of the ERC may have access to this data on request”.

There is no opt-out in the parallel regulations covering inland waterways (IWR), nor in civil aviation (CAR) nor in the road transport (RTR) regulations, making the “boundary” with the WTR regulations particularly significant. Unions have expressed concern that road goods employers might switch to smaller vehicles to get below the RTR threshold, and some local bus operators working under WTR do routinely use the opt-out.