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The maximum working week
[ch 9: pages 156-159]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 but 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 and around 11% of UK employees continue to work more than 48 hours a 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 European Trade Union Confederation (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.
Work Your Proper Hours Day
Work your Proper Hours Day is an annual TUC campaign highlighting the amount of unpaid overtime worked by Britain’s workers, and emphasising the risk to workers’ health of long hours. In 2013 alone, one in five employees across the UK regularly worked unpaid overtime, worth over £28 billion to the economy.
Employers are 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).
The TUC published figures on the professions doing the most unpaid overtime, based on statistics from the Labour Force Survey, to coincide with the 2014 Work your Proper Hours Day. The figures revealed that teachers and education professionals did the most unpaid overtime (54%), averaging 12 hours per week.
In February 2014, the Department for Education released the outcome of its Teachers’ workload diary survey 2013. The results showed that on average a primary school teacher was working nearly 60 hours per week, secondary heads 63 hours and the average secondary teacher was working nearly 56 hours a week. The findings were condemned by teaching unions. The survey is available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285941/DFE-RR316.pdf
The 48-hour week and work-related stress
It is not possible for a worker to bring a freestanding 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:
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. What amounts to a “detriment” for this purpose was examined in the following case:
Mr Nicolaou was a bus driver who refused to sign a 48-hour opt-out agreement. His employer, Arriva buses, introduced an “across-the-board” policy that no driver who refused to sign an opt-out agreement would be allowed to do voluntary overtime. The EAT concluded that the new policy was not a breach of the WTR. The policy was not a “detriment” suffered by Mr Nicolaou as a result of opting out of the 48-hour week. Instead, the policy was reasonable because its purpose was to avoid a breach of the WTR. Regulation 4(2) of the WTR obliges employers to “take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the [48-hour limit] is complied with”.
In drawing up the policy, the employer did not intend to force Mr Nicolaou to sign an opt-out agreement, or to punish him for not opting out. Instead, the refusal of overtime was a consequence of the employer implementing a reasonable policy.
Arriva London South Limited v Nicolaou UKEAT/0293/11
People who work more than 48 hours a week are more likely to consume “risky” quantities of alcohol — more than 14 units per week for a woman and more than 21 for a man — according to a paper published in the British Medical Journal in January 2015.
The overview of studies covering more than 400,000 people across countries including Britain, France, Germany, Taiwan and the United States, showed that long working hours boosted the likelihood of higher alcohol intake by 11% overall. It found that those who worked 49-54 hours a week ran a 13% higher risk of developing a “risky alcohol use” (levels that have been linked to a higher risk for liver and heart disease, cancer, stroke and mental disorders) habit compared to those who worked a 35-40 hour work week. Those working 55 hours or more were 12% more at risk.
The study by Marianna Virtanen and others, Long working hours and alcohol use: systematic review and meta-analysis of published studies and unpublished individual participant data, can be found online at: www.bmj.com/content/350/bmj.g7772
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.