9. Hours of work

Changes and developments since last year

• In May 2012, pilots’ union BALPA’s Wake Up! Campaign against EU plans to increase pilots’ working hours secured a major victory when the House of Commons Transport Select Committee agreed that EU proposals threaten safety and must be improved before the UK signs up to them.

• The government’s consultation: Modern Workplaces: the Working Time Regulations, closed on 16 August 2011. To date, no response has been published due to “on-going discussions” across government. The consultation looks at proposals to change the regulations in the light of European Court rulings on the interaction between annual leave and sickness absence.

• In November 2011, the EU social partners agreed to begin negotiations to revise the Working Time Directive. The key issues under discussion include on-call working, the 48-hour opt-out, and interpretations of various European Court rulings on the Directive.

General background — the Working Time Directive

The European Union (EU) directive on working time was designed to protect workers’ health and safety by imposing legal limits on the maximum length of the working week, paid holidays, breaks and rest periods. The directive became law in the UK mainly through the Working Time Regulations (WTR).

Core rights

Under the WTR, most UK workers have the right to:

• a maximum average working week of 48 hours, including overtime;

• a maximum of eight hours’ night work;

• a daily rest period of 11 hours;

• • a day off per week;

• a rest break if working more than six hours; and

• paid annual leave of 5.6 weeks.

Working Time under the WTR Regulations

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 (which can include a contract of employment).

Working time includes travelling time where it is part of the job. It does not include travelling between home and work, lunch breaks, evening classes or day-release courses.

Time spent “on call”

Working hours can include time on-call, provided that the employee has to remain on the employer’s premises, even if s/he is not obliged to work. It is only when someone is on call but not required on the premises, that hours on call are not counted. In Sindicato de Medicos v Consumo de la Generalidad [2000] IRLR 845, doctors were on call at a health centre during their period of duty. They were not permitted to leave, although they could read, watch TV, rest or sleep. The European Court of Justice (ECJ) held that this time must be considered entirely as working time.

In a similar ruling, the ECJ held that a doctor who slept at the hospital and who rarely spent more than half of the time on call actually working could include all of that time as working time. This meant he was entitled to compensatory periods of time off immediately following the time on call (Landeshauptstadt v Jaeger [2003] IRLR 804). These rulings were later upheld in a further important ECJ decision, Abdelkader Dellas and others v Premier Ministre (Case C-14/04).

In response to these rulings, employers have been arguing for a change to the Directive. Employers want to introduce a concept described as “inactive on-call time”, in which time spent by a worker when on call at the workplace but not required to carry out duties would not be regarded as working time unless otherwise agreed. Unions have strongly resisted such a move, and in March 2011, at the end of the second review phase, the European Commission indicated an intention to abandon the concept of “active and passive” on call time, a development described by the ETUC as a “step forward”.

In November 2011, Business Europe, the body representing employers and employer federations in the negotiations, issued a policy briefing in which it identified as a key priority that “on-call work should not be considered as working time”.

The ETUC continues to argue for these favourable ECJ decisions on “on call” time to be written directly into the Working Time Directive through an amendment of the text, to strengthen the position of workers, especially vulnerable workers who lack effective collective representation.

Unmeasured time

The limits on working time in the 1998 Regulations do not apply to work whose duration “is not measured or predetermined or can be determined by the worker himself”. This exemption is designed to cover managing executives and others with autonomous decision-taking powers, as well as family workers and workers officiating at religious ceremonies.

Who the Working time Regulations apply to

The regulations apply to workers not just employees. They cover any individual who works under a contract personally to perform work or services for another, except for those individuals who are genuinely in business on their own account and are in a client or customer relationship with the other party. Thus, for example, the Working Time Regulations protect agency workers, apprentices, casual workers, and any workers in sham “self-employment” arrangements. Interns are covered provided they are “workers”. More information is available from LRD’s Law at work 2012.

Following a series of amendments, groups previously excluded from the regulations are now included. The Working Time (Amendment) Regulations 2003 implemented the European Horizontal Amending Directive. The UK regulations now include “non-mobile workers” in most of the previously “excluded” sectors, such as air, road and rail transport and offshore work. This means, for example, that clerical workers in these sectors are now fully covered.

Mobile workers

The situation for mobile workers is slightly more complicated. A mobile worker is defined as: “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”. Separate European directives for seafarers, aviation and road transport brought provisions on working time, rest and leave to these sectors.

The Merchant Shipping (Hours of Work) Regulations 2002 (SI 2002 No.2125) provide for:

• a minimum weekly rest requirement of 77 hours in any seven-day and 10 hours in any 24-hour period; and

• four weeks’ paid annual leave and health assessments.

The Civil Aviation (Working Time) Regulations 2004 limit the annual working time of airborne personnel to 2,000 hours (including overtime) and restrict flying time to 900 hours. They provide for seven rest days per month, 96 rest days per year, four weeks’ leave and “adequate” rest breaks. They also require “appropriate” health and safety protection for all mobile personnel, and provide for health assessments and transfer from night work on health grounds.

The Road Transport (Working Time) Regulations 2005 affect mobile workers (mainly drivers, crew and other travelling staff) who are travelling in vehicles subject to the Community Drivers’ Hours Regulations.

The regulations introduced limits on weekly working time (excluding breaks and periods of availability) and a limit on the amount of work that can be done at night. They also specify how much continuous work can be done before taking a break and introduce daily and weekly rest limits for the crew and travelling staff. Under the regulations, working time for mobile workers must not exceed:

• an average 48-hour week (normally calculated over a four-month reference period);

• 60 hours in any single week; or

• 10 hours in any 24-hour period, if working at night.

A reference period for the average 48-hour week may be extended from four to six months and the amount of night work can exceed 10 hours if a collective or workforce agreement is in place.

The rules on drivers’ hours and tachograph use in the UK are very complex. Detailed guidance is available from the Department of Transport at: www.dft.gov.uk/pgr/freight/road/workingtime/

Exclusions

Some groups, such as the armed forces, are completely excluded from the WTR.

There are also “special case” exclusions that apply to workers in a range of activities, such as drivers, guards and platform staff on the railways. These workers are still entitled to the 48-hour average working week, 5.6 weeks’ paid leave and night worker health checks, but are excluded from night worker limits, rest breaks and rest periods. Doctors in training gained rights from 1 August 2004, but the 48-hour week was phased in over a number of years before it came into effect fully in August 2009.

The other “special case” exclusions cover:

• workers whose activities are such that their place of work and place of residence are distant from one another;

• those engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, such as security guards and caretakers;

• activities involving “the need for continuity of service or production”;

• situations where there is a foreseeable surge in activity, for example, activities that are affected by: unusual or unforeseeable circumstances “beyond the control of the worker’s employer”; exceptional events which “could not be avoided”; or accident or imminent risk of accident.

The European Court of Justice (ECJ) has ruled that emergency workers are covered by the Working Time Directive. The case concerned Red Cross rescue workers dealing with unforeseen events. The ECJ held that emergency workers are not dealing with events that are unforeseeable, so they are covered by the directive (Pfeiffer v Deutsches Kreuz, Kreisverband Waldshut (2005) C-397/01).

Security activities are among the “special case” exclusions. However, an employment tribunal has ruled that all security guards are entitled to rest breaks. Although the security industry is not subject to the law requiring that workers have a 20-minute rest break every six hours, it must do “the next best thing”, such as allow a number of shorter rest periods or one longer period.

Children are not covered by the WTR. An Employment Appeal Tribunal (EAT) ruled that a newspaper delivery boy did not have the right to paid holidays under the WTR as he was not a “worker” (Addison t/a Brayton News v Ashby UKEAT, 17 January 2003).

Instead, the Children (Protection at Work) Regulations 1998 control the working time of children aged 14 and 15. The minimum age from which children are allowed to work is 14, although 13-year-olds may be allowed to do some light work which can be specified in local by-laws. These can impose rules on occupations, hours, rest breaks and holiday times, but cannot override those specified in the regulations.

The regulations set a maximum daily working time on non-school days of five hours for those aged under 15. Maximum weekly hours are 25 and 35 respectively. Schoolchildren must not work for more than four hours in any day without a rest break and must have at least two weeks free from both school and work.

The maximum working week

The maximum working week is set at 48 hours per week when averaged over what is called the “reference period” (Regulation 4). This means that workers can legally work more than 48 hours in some weeks, as long as they work less than 48 hours in others. The reference period is normally 17 weeks, but can be extended to 26 weeks in some cases. It can also be extended to 52 weeks by agreement only. Employers cannot make workers do more than these hours (Barber v RJB Mining [1999] IRLR 308).

The UK’s opt-out

In the UK, workers may agree to opt out of the 48-hour maximum working week. Any agreement with the employer to opt out must be in writing. It must be voluntary and workers cannot be forced to opt out. If workers opt out, the employer must keep records of these workers.

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

The TUC has put together a model letter enabling workers to opt back into the 48-hour week. It is available at: www.tuc.org.uk/tuc/optout.pdf

The 48-hour week and work-related stress

It is not possible for a worker to bring a free-standing claim in the Employment Tribunal for breach of the 48-hour working week. Nevertheless, the fact that an employer routinely requires a worker to exceed this limit can be evidence of a fundamental breach of the duty to take reasonable care of that worker’s health and safety, supporting a claim for constructive dismissal. It can also be evidence in support of a personal injury claim in the civil courts linked to work-related stress.

In the event of a claim, it is important to provide as much hard contemporaneous supporting evidence as possible to show that the long hours claimed were in fact worked. Usually these hours take the form of unpaid overtime, and often there will be no independent record of these extra hours. Keeping a regular daily journal is a sensible idea. In any event, the issue should be raised regularly with management, via a safety rep if available, and copies of emails and grievance letters should be kept, together with any response. Safety reps may be in a position to get the issue dealt with at an organisational as opposed to an individual level, and may, for example, be able to use formal complaints as a catalyst to encourage the employer to conduct a stress survey and build an action plan to better manage stress (see Chapter 11: Stress, bullying and violence).

In the following case, the Court of Appeal found that working more than the 48-hour maximum was relevant evidence in a work-related stress claim.

Employers are also bound by an implied contractual duty not to require that employees work such long hours as to damage their health (Johnstone v Bloomsbury Health Authority [1991] IRLR 118).

European level negotiations on the 48-hour week

The ETUC continues to campaign to end the opt-out from the 48-hour limit on weekly working time, and to keep the current reference periods for calculating average working time in place. However, in practice, the individual opt-out is spreading across other EU states. Well over half the member states have made provision in their national legislation for some form of opt-out, although there are wide variations in the conditions attached to its use.

An individual who refuses to opt out of the 48-hour week cannot be treated less favourably as a result of that decision. A worker who suffers a detriment (for example, being refused a promotion or a pay-rise) for refusing to opt out can bring a claim in an employment tribunal. What amounts to a “detriment” for this purpose was examined in this recent case:

Young workers

The Working Time (Amendment) Regulations 2002 ended the UK opt-out for young workers. Young workers are defined as having “attained the age of 15 but not the age of 18”. Under the WTR, the maximum working hours for young workers must not exceed eight hours a day or 40 hours a week. These hours cannot be averaged out over a longer period. Where a young person works for more than one employer, working hours are aggregated and must be within the overall maximum.

Night work

A night worker is defined as someone who works at least three hours of their daily working time during the night time “as a normal course” (Regulation 6).

Night time is a period of at least seven hours, including the period between midnight and 5am, as laid down in an agreement or contract or, in the absence of such an agreement, the period between 11pm and 6am (Regulation 6). A night worker must not normally work more than eight hours in each 24-hour period when averaged over any period of 17 weeks (the reference period).

If the length of night work is altered or excluded by a collective or workforce agreement, compensatory rest must be made available. Mobile workers are excluded from the night work limits. Instead, they are entitled to “adequate rest”.

The Working Time (Amendment) Regulations 2002 changed the definition of night working hours to include all overtime (rather than just guaranteed overtime) in the calculation of average night working limits.

Some sectors (including hospitals, agriculture, retail trading, hotels and catering businesses, bakeries, fisheries and postal and newspaper deliveries) are exempted from the night working restrictions because of their particular operational needs. Work in bars and restaurants is also exempted.

Night work and young workers

Young workers may not ordinarily work at night between 10pm and 6am (or between 11pm and 7am where the contract of employment allows for work after 10pm).

Health assessments

Employers must ensure that night workers whose work involves special hazards or heavy physical or mental strain do not work more than eight hours in any 24-hour period. This includes work that a risk assessment carried out under the Management Regulations (see Chapter 2) shows to involve a significant risk.

Employers must not assign adult workers to night work unless the worker has been offered a free health assessment. These should be available at appropriate regular intervals and can be provided by an occupational health doctor or GP. If a doctor advises an employer that a worker’s health problems are likely to be connected with night work, and it is possible to transfer them to suitable work that is not night work, the employer must transfer the worker to daytime work (Regulation 7(6)).

However, there is no absolute protection for workers, other than pregnant women and disabled people, if there is no suitable work to transfer to. This means an employer may be able to dismiss a worker fairly in these circumstances.

Research links shift work with breast cancer

A report published by the HSE in May 2010 estimated that more than 550 UK breast cancer deaths and almost 2,000 cases of breast cancer are linked to shift work. This represents almost half of all occupationally-related cancer registrations (1,971 out of a total of 3,622) in women. The Burden of occupational cancer in Great Britain by Imperial College London, the Institute of Environment and Health and the Health and Safety Laboratory (HSL) provides an updated estimate of the number of cancer cases and cancer deaths caused by work. It can be found at: www.hse.gov.uk/research/rrhtm/rr800.htm.

Rest

Daily rest

Adult workers are entitled to at least 11 consecutive hours, and young workers (16- and 17-year-olds) to at least 12 consecutive hours, as a rest period in each 24-hour period (Regulation 10).

Weekly rest

Adult workers are entitled to an uninterrupted rest period of at least 24 hours in each seven-day period (Regulation 11). The employer can decide whether this is taken as two uninterrupted periods of at least 24 hours, or one uninterrupted rest period of at least 48 hours, in each 14-day period (Regulation 11(2)). Young workers are entitled to at least 48 hours in each seven-day period (Regulation 11(3)).

Rest breaks

Workers are entitled to a rest break where they work more than six hours in a day (Regulation 12). This must be an uninterrupted period of at least 20 minutes away from any workstation. An EAT has held that there is no statutory right to a second 20-minute break after twelve hours work (The Corps of Commissionaires Management v Hughes UKEAT/0196/08/CEA). The break must be taken during, rather than at the start or end of, the working time.

Young workers are entitled to a rest break of at least 30 minutes, which should be consecutive if possible, where the daily working time is more than four-and-a-half hours.

Where the pattern of work is such as to put the health and safety of workers at risk, particularly if the work is monotonous or the work rate is predetermined, the employer must ensure that workers get adequate rest breaks (Regulation 8). In these circumstances, employers should give more regular breaks than the minimum required by law. There are additional rules about rest breaks for display screen (VDU) users (see Work equipment: Chapter 7).

Shift workers

The regulations on daily and weekly rest periods do not apply to shift workers when they change shifts and cannot take the rest periods between the end of one shift and the start of the next one. Similarly, they do not apply to workers whose work is split up over the day, such as cleaners. But in both cases, they are entitled to compensatory rest.

Compensatory rest

Where workers lose out on their rest periods, for example because they are moving between shifts, their rest break is excluded as a “special case”, or their rest breaks have been modified due to collective or workforce agreements, they must be given an equivalent period of compensatory rest. Government guidance suggests that this should be taken “reasonably soon after the time you missed”. In exceptional cases where this is not possible, the employer must give the worker appropriate protection to safeguard health and safety. At European level, unions continue to campaign for tighter regulation of compensatory rest, with clearer rules to prevent any delay in being allowed to take the rest.

In Alpha Catering Services v Gallagher [2005] IRLR 102, the Court of Appeal held that the focus, in relation to the rules on compensatory rest, is on the activities of the worker, not of the employer. Employers cannot, for example, under-staff to avoid giving workers the right to breaks.

In the case of seafarers, where there are separate regulations, short breaks are included within the definition of working hours (P&O Ferries (Bermuda) v Spencer UKEAT/0433/04).

Holidays

Workers are entitled to 5.6 weeks’ paid annual leave (under Regulation 13, as amended). Unions have won a series of Court victories since the regulations came into force to ensure that as many workers as possible are entitled to paid leave.

BECTU broadcasting and entertainment union challenged the restriction of paid holiday entitlement to workers who have worked for the same employer for 13 weeks continuously, which adversely affected temporary and agency workers (R v Secretary of State for Trade and Industry ex parte BECTU [2001] IRLR 559). The European Court of Justice ruled that the 13-week qualifying period was unlawful and the regulations were amended by the Working Time (Amendment) Regulations 2001 (SI 2001 No.3256).

Building workers supported by construction union UCATT won an important victory in a tribunal claim for the right to paid holidays. The workers successfully argued that, despite being classed as self-employed by their employers, there was enough of a contractual relationship between the parties to show that they were “workers”. This meant that they were protected by the WTR, in particular were entitled to paid holidays (Byrne Bros v Baird [2002] IRLR 96).

Holiday entitlement

The WTR originally allowed for only four weeks of annual leave, but this was increased in stages, and since 1 April 2009, statutory holiday entitlement has been set at 5.6 weeks. A week’s leave is the same length of time as the working week.

This means that someone working five days a week is entitled to 28 days’ annual leave, while someone working three days a week is entitled to 16.8 days’ annual leave. Twenty eight days is the maximum statutory entitlement (although more generous contractual holiday entitlement can be negotiated). This means that someone who works a six day week does not accrue an entitlement to extra statutory leave beyond the maximum 28 days.

Bank holidays

There is no statutory right to take leave on bank holidays. Any entitlement to bank holidays is purely contractual. Employers are free to include bank holidays as part of the statutory minimum paid holiday entitlement (Campbell & Smith Group v Greenwood [2001] IRLR 588).

Timing of holidays

Employers can make rules about the timing of holidays:

However, it has recently been suggested by the Supreme Court that the entitlement to annual leave is measured in weeks, not days. This would mean that while the worker can choose to take all or part of the holiday entitlement in individual days off if they want to, the employer cannot force a worker to take holiday on individual days (Russell v Transocean International Resources Limited [2011] UKSC 57).

The issue is important because otherwise (based on the Sumsion case above) employers could undermine the health and safety objective of the Working Time Directive by designating Saturday as a working day and then forcing workers to take their holiday on consecutive Saturdays. The Supreme Court did not have to make a decision on this issue in order to decide the Transocean case and this means that their observations, while important, are not binding.

An employer has the right to ask for leave to be deferred, provided it tells the employee in advance, giving notice which is at least as long as the leave requested. Shorter notice can be given where a “relevant agreement” allows this. A clause in the contract stating that the employee can be required to take holiday during the notice period can be a “relevant agreement” for this purpose (Industry & Commerce Maintenance v Briffa UKEAT/0215/08/CEA).

Workers in the first year of their employment must accrue statutory holiday on a month by month basis before they are entitled to take it.

Offshore oil workers

In 2006, the Working Time (Amendment) (No2) Regulations 2006 brought offshore working explicitly under the regulations, and meant that offshore workers were entitled to paid holiday.

In Russell v Transocean International Resources Limited [2011] UKSC 57, the Supreme Court held that where workers work a two week shift offshore, followed by a two week onshore field break, employers are entitled to require workers to take their statutory annual leave during the onshore field break.

Carrying unused leave forward into a subsequent leave year

Except for the special position where a worker is unable to take annual leave due to sickness, under the WTR a worker with unused annual leave has no right to carry forward any of the four weeks annual leave from one leave year to the next.

A “relevant agreement” can be entered into to allow any of the extra 1.6 weeks of annual leave to be carried forward into the immediately following holiday year.

If a worker is entitled under the employment contract to extra annual leave, beyond the minimum statutory entitlement of 5.6 weeks, worker and employer are free to agree anything they want about carrying forward (or even buying back) any of the unused extra contractual holiday allocation.

Pay in lieu of annual leave

Because the WTR are intended to promote the health and safety of workers, there is an absolute prohibition on payment in lieu of any part of the statutory annual leave entitlement. This is designed to avoid employers offering workers payment to forgo their minimum holiday entitlement.

Sick leave and holiday

There have been two important ECJ decisions interpreting the relationship between sickness absence and statutory holiday entitlement under the WTR. The first of these is Stringer v HM Revenue and Customs, C-520/06) (Stringer). In this case, the ECJ decided that workers accrue holiday while on long-term sick leave and must be allowed to take it on their return to work, or be paid in lieu of untaken leave if their employment ends. Employees on long-term sick leave who are owed holiday pay can bring a claim for the unlawful deduction of wages under the Employment Rights Act 1996 (HM Revenue and Customs v Stringer and others [2009] UKHL 31).

The second important ECJ decision is Pereda v Madrid Movilidad SA [2009] IRLR 959. This case looked at what happens where an employee falls ill while on holiday. The ECJ concluded that an employer cannot force a worker to take annual leave when off work sick. Instead, workers must be allowed to carry over their holiday. In principle, this means that workers who fall ill while on holiday must be allowed to re-designate their statutory annual leave as sick leave and to carry forward the unused holiday to take when they are fit to work.

This was confirmed in the recent case of ANGED v FASGA, 21 June 2012 (C-78/11), a case brought by Spanish trade unions against a department store chain that was refusing to allow workers to re-designate annual leave as sick leave when they fell sick in the middle of their holiday.

Consultation — working time and annual leave

The coalition government launched a consultation in May 2011 on changes to the WTR, in particular to bring the WTR into line with European law according to the Stringer and Pereda cases. The consultation, Modern Workplaces: Working Time Regulations has closed, but a response has not yet been published. The consultation document containing the government’s proposals is available at: www.bis.gov.uk/Consultations/modern-workplaces

The consultation contains some suggestions for collective agreements to manage the new leave regime, looking, in particular, at what happens when workers fall ill on bank holidays.

Rolled-up holiday pay

When the right to paid holidays was introduced, many employers dealt with it by simply telling their workers that their hourly rate included an additional sum that was equivalent to holiday pay. Their holiday pay was therefore “rolled-up” into the basic hourly rate. The worker was then expected to save a proportion of the weekly wage to cover the weeks that they were on holiday. However, some employers simply said that their workers’ existing pay already included this rolled-up element, so that their workers received no extra holiday and no additional pay either.

In 2006, the European Court of Justice clarified the law (Robinson-Steele v R D Services Ltd C-131/04 and C-257/04 [2006] IRLR 386). The Court ruled that it is unlawful to pay holiday pay as part of the hourly rate of pay. It said that the practice of rolled-up holiday pay does not comply with the Working Time Directive, which requires that workers are paid for their holiday at the time that they take it.

However, confusingly, these cases also confirm that as long as a worker (typically an agency worker) is told clearly, fully and transparently which part of any pay packet is intended to represent holiday pay, the employer will be allowed to set off any sums paid as holiday pay against the worker’s claim for holiday pay. In other words, where the employer has made clearly identifiable payments on account of holiday pay, a tribunal is likely to conclude that a technical breach of the WTR has not resulted in any loss to the worker.

Even so, in 2010, BIS changed the guidance on its website, which now states that rolled up holiday pay is unlawful and that employers must always pay their workers their normal wages while they are actually taking their annual leave.

Agency workers’ enhanced rights

As explained above, agency workers are protected by the WTR, which gives them rights to holidays, rest breaks and protection in relation to night work. In addition, since 1 October 2011, qualifying agency workers also have rights under the Agency Workers Regulations. Under these regulations, agency workers who have worked in the same post for twelve weeks for the same end-user are entitled to benefit from the same main terms and conditions as a comparable employee who is directly employed by the end user. These terms and conditions include contractual rights to rest breaks and holiday.

Collective and workforce agreements

Collective or workforce agreements can modify or exclude the WTR on the length of night work and daily rest, weekly rest and rest breaks for adults (Regulation 23). They can also alter the reference period for calculating the average working week, up to a maximum of 52 weeks.

Enforcement

Enforcement is split between different authorities. The restrictions on the maximum working week, night work and work patterns impose obligations on employers and are enforceable by the Health and Safety Executive (HSE) or local authority environmental health officers, the Civil Aviation Authority (CAA), the Vehicle and Operator Services Agency (VOSA) and Office of Rail Regulation (ORR).

Any employer who fails to keep to the regulations is breaking the law and can be prosecuted. Statutory rights to daily and weekly rest periods, rest breaks, compensatory rest and annual leave are enforceable by workers at employment tribunals. Prosecutions for breach of the WTR are very rare.

The Pay and Work Rights helpline

The Pay and Work Rights helpline was launched in September 2009 and provides a unified point of contact for employers and workers on areas including working time. The helpline number is 0800 917 2368. The textphone number is 0800 121 4042. Advisory and conciliation service Acas also has a helpline. Its number is: 08457 47 47 47.

Information is also available at: www.direct.gov.uk/payandworkrights and: www.businesslink.gov.uk/payandworkrights.

Protection against detrimental treatment

The Employment Rights Act 1996 protects workers against detrimental treatment or victimisation if they refuse to do something contrary to the WTR or refuse to forgo their rights under the regulations. A dismissal for this reason will be automatically unfair. The limits of this protection were explored in the following case:

Two carers for vulnerable adults fell asleep during their shift and were dismissed as a result. They argued that the dismissal was automatically unfair because by sleeping, they were asserting their statutory right to a break. The EAT rejected this argument. It held that to succeed in this kind of claim, the workers should have communicated in advance to their employer their refusal to accept the employer’s breach of the statutory right. Simply taking a rest break in these circumstances was not enough to trigger protection under the WTR. The care home was criticised for failing to provide statutory rest breaks, but the unfair dismissal claim failed (Ajayi and another v Aitch Care Homes (London) Ltd UKEAT/0464/11).