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Exclusions
[ch 9: pages 157-160]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.
Working time and the junior doctors’ strike 2016
Explaining the reasons behind the long-running junior doctors’ dispute, which involved five periods of industrial action, their union the British Medical Association said that the government wanted to remove safety measures that stop junior doctors from working excessive hours. The junior doctors took strike action in support of a contract that pays them fairly for the hours they work, ensures that the hours they work are safe, provides cover at weekends and at night, but also recognises their right to a family life and does not disadvantage those doctors who work less than full time or who take parental leave.
In May 2016, the BMA reached an agreement with the government on a new contract for junior doctors in England. It set out the key improvements for junior doctors as:
• recognition of junior doctors’ work and contribution across every day of the week;
• proper consideration of and provision for equality in the contract, including the chance for accelerated training for those who take time out for caring responsibilities;
• improved flexible pay premia for specialties such as emergency medicine and psychiatry, to address the current recruitment and retention crisis in these areas; and
• more rigorous oversight of the new guardian role, to ensure safe working for junior doctors.
As this booklet went to press, members were voting on whether to accept the deal.
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”; and
• situations where there is an unforeseeable 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 Rotes Kreuz [2005] IRLR 137).
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.
Gavin Ruddick, a security guard, brought a case supported by the GMB general union. He had complained to his managers at security firm Reliance that there was no official policy in place to allow him rest breaks to go to the toilet. His employer’s response had been that he would be blamed for any loss if property were damaged while he was away from his post. Ruddick was later moved from his city centre office to a car park Portacabin, for which he received less pay. The tribunal concluded that the company impaired Ruddick’s convenience and quality of life. It also ruled that he had been moved in an attempt to “shut him up”.
Ruddick v Reliance Security Services, Newcastle Employment Tribunal, June 2003, unreported
The EFTA Court recently ruled that an 84-hour working week in the care sector is lawful. The Court has jurisdiction with regard to EFTA States which are parties to the European Economic Area (EEA) Agreement (Iceland, Liechtenstein and Norway). Its jurisdiction largely corresponds to the jurisdiction of the Court of Justice of the European Union (CJEU) over European Union States:
Staff at a charitable treatment centre for young people with drug and alcohol problems introduced a new seven-days-on, seven-days-off-rota for financial reasons. The staff rejected the proposal, arguing that they were entitled to 90 hours of weekly rest under the Working Time Directive. They were given notice of dismissal, combined with an offer of re-employment on the new terms, including an increase in pay alongside the proposed new shift pattern.
Norway referred the case to the EFTA Court, asking if an average weekly working time of 84 hours (seven-seven rotation) in a cohabitant care arrangement was in breach of Article 6 of the Directive. The EFTA Court decided that, because the circumstances fell within one of the derogations in the Directive, “services relating to the reception, treatment and/or care provided by hospitals or similar establishments,” the average 84-hour working week was not unlawful, provided the company provided the equivalent compensatory rest and the workers had signed valid opt-outs from the 48-hour limit on average weekly working hours.
It said that there should be a balance between the rights of the workers and the needs of the establishment and its patients. Although staff had not signed opt-outs, the court said that because they had rejected the new terms, which were of financial benefit to both parties, the charity could terminate the contracts “for reasons which are fully independent of a worker’s refusal to agree to perform such additional work”, reflecting the employer’s “difficult financial situation”. The decision has been criticised as an extraordinary interpretation which could set a worrying precedent.
M’Bye and others v Stiftelsen Fossumkollektivet [2016] IRLR 227
www.eftacourt.int/fileadmin/user_upload/Files/Cases/2015/05_15/5_15_Judgment_EN.pdf