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The 48-hour week and work-related stress
[ch 9: pages 162-163]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 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:
Pub manager Mark Hone regularly worked 90 hours a week and was provided with only occasional help. He refused to sign an opt-out from the 48-hour limit and persistently complained about his hours and the lack of support. The Court of Appeal held that these factors were enough to show that the resulting injury Hone suffered was reasonably foreseeable and his claim for stress-related injury succeeded.
Hone v Six Continents Retail Ltd [2006] IRLR 49
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.
It is not a detriment for an employer to have a policy of refusing voluntary overtime to any worker who refuses to sign an opt-out agreement. The EAT has ruled that this kind of a policy is a reasonable response to a worker’s refusal to opt out. This is because the employer also owes a statutory duty to take reasonable steps to secure compliance with the 48-hour limit (regulation 4(2), WTR) (Arriva London South Limited v Nicolaou [2011] UKEAT/0293/11).
Study links long hours to higher stroke risk
New research published in the Lancet medical journal found that employees who work long hours have a higher risk of stroke than those working standard hours. However, it found that the association with coronary heart disease is weaker. The authors said the findings suggest that more attention should be paid to the management of “vascular risk factors” in individuals who work long hours.