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 (WTR) protect agency workers, apprentices, casual workers, and any workers in sham “self-employment” arrangements (see Chapter 12). Interns are covered provided they are “workers”.

Following a series of amendments, groups previously excluded from the regulations are now included. The Working Time (Amendment) Regulations 2003 implemented the so-called “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.

These have been implemented in the UK by legislation including the Merchant Shipping (Hours of Work) Regulations 2002 and the Civil Aviation (Working Time) Regulations 2004.

From 18 February 2016, Commercial Air Transport operators of planes will need to have transitioned to new European Flight Time Limitations. Aviation unions BALPA and Unite opposed the changes on the basis that they threaten to increase working time.,

The Supreme Court decision in British Airways Plc v Williams [2012] UKSC 43 [2012] IRLR 1014, a case representing claims by 2,750 pilots, has implications throughout and beyond the aviation industry.

The British Airways (BA) pilots’ holiday rights only gave them basic pay during leave time. They argued that their holiday pay should also include their flying pay supplement and time away from base allowance. The case looked at whether paying only basic salary to pilots on annual leave is in breach of Regulation 4 of the Civil Aviation (Working Time) Regulations 2004.

The Supreme Court referred the case to the European Court of Justice (ECJ). It held that a pilot on annual leave was entitled not only to basic salary, but also “to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided”. The Supreme Court held that their holiday pay must include these supplements and allowances as well as their basic pay.

The case is of wide significance because the ECJ decision was also relevant to the correct interpretation of the Working Time Regulations which contain holiday rights for most UK workers.

Public services union UNISON commented: “This decision should prompt trade union representatives to review the holiday pay provisions in their workplaces with a view to:

• determining an appropriate pay reference period for particular roles;

• ensuring that all relevant elements of pay, including seniority premiums and other allowances that are intrinsically linked to the performance of the task, as opposed to being genuine expenses allowances, are included.”

Drivers’ working hours

Two sets of working time regulations and two sets of parallel regulations control working time on the roads. 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 EU 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.

Alternatively, mobile workers may be covered by the WTR plus the domestic Drivers’ Hours rules. Self-employed drivers are covered by the Road Transport (Working Time) Regulations.

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.

Hospitals in Scotland reduced the hours of junior doctors following a campaign by Brian Connelly whose daughter, Dr Lauren Connelly, was killed in a car accident while she was driving home after several weeks of working long hours at Inverclyde Royal Hospital. In a letter to NHS chief executives in Scotland, NHS Scotland director general for health and social care and chief executive, Paul Gray, said that no junior doctor should work seven full night shifts in a row from February 2015 and no junior doctor should work more than seven day shifts in a row by 2016. Scottish health secretary Alex Neil said that hospitals must also provide rest facilities that doctors can use during or after shifts. External assessments will be carried out to make sure NHS boards are taking the necessary action.

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.

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.