Working Time (Amendment) Regulations Offshore Workers (oil and gas exploration and production) New regulation 21(a) (inserted by regulation 6 of the draft regulations) is designed to give effect to the Article 17a(3) of the HAD. The HAD provides for the 48-hour weekly working time limit for offshore workers to be averaged over a standard reference period, or one to be agreed between workers and employers.

 

Working Time (Amendment) Regulations Junior Doctors New regulation 4(5), (inserted by regulation 4 of the draft regulations) excludes junior doctors from the standard 17 week reference period, which applies to all workers except the categories listed in regulation 21 of the Working Time Regulations 1998. New regulation 22A(2)(a) and (b) (inserted by regulation 7 of the draft regulations) replaces the 17 week reference period with a period of 52 weeks from 1st August 2004 to 31 July 2007 and 26 weeks from 1 August 2007 to 31 July 2009.

 

Calculation of average weekly working time

2.2.4.  Regulation 4(6) of the Working Time Regulations 1998 sets out how the arrangements for calculating a worker's "average working time" will operate.  This is done by identifying the number of weeks in the reference period and the number of hours of "working time" worked by the worker in the period, and dividing the second by the first to produce an average figure. The calculation of the average weekly working time is neutral in respect of annual leave, sick leave and maternity leave. To take account of this, regulation 4(6) and (7) of the Working Time Regulations 1998 allows for extending the reference period where a worker will not have worked certain days during the reference period because they were on annual, sick or maternity leave ("excluded days").  For the calculation, the hours worked in the number of working days, immediately after the reference period, equivalent to the number of "excluded days" is added to the total working hours.

2.2.5.  A standard reference period of 17 weeks has been used to simplify, as far as possible, the calculation of average hours worked. The calculation for the average hours worked is described by the equation:
 

A + B

C

Where:

A	is the total number of hours worked during the reference period;
B	is the total number of hours worked, immediately after the reference period, which will be equivalent to the number of days excluded during the reference period; and
C	is the number of weeks in the reference period.

2.2.6.  Where a worker has worked for the employer for less than 17 weeks, the average weekly working time for whatever period has actually been worked must not exceed 48 hours per week.

Agreement to exclude the maximum

2.2.7.  Regulation 4(1) and (2) of the Working Time Regulations 1998 requires that unless an employer has obtained a worker’s written agreement, the 48-hour limit must be adhered to and the employer must keep a record of all workers who have signed an opt-out agreement.  Regulation 5(2) provides that the agreement can either relate to a specific period or have indefinite effect, and that subject to any notice period provided by the agreement, the agreement can be terminated by giving not less than 7 days’ notice.

Adolescent Workers’ Working Time

2.2.8.  In line with the requirements of the Young Workers Directive, the Government is taking action to amend the Working Time Regulations to restrict the working time of adolescents (those between minimum school leaving age and their 18^th birthday) to 8 hours a day, and 40 hours a week, following a public consultation which ran from 14 June 2002 to 6 September 2002.  The change will be in place before the Horizontal Amending Directive is implemented. Once the HAD is in place, the Young Workers Directive provisions will automatically extend to young workers in the relevant parts of the excluded sectors.

 

3. Night work limits and related provisions

2.3.1.  This section sets out the application of the night work and related provisions of the Working Time Regulations. The amending regulations extend these provisions to all non-mobile workers in road, sea, and inland waterways sectors, sea fishing and the activities of doctors in training; to all workers in the aviation sector not covered by the Aviation Directive; and to all workers in the rail and offshore sectors. Mobile workers in road transport will be entitled to health assessments if they work nights.

Maximum hours of work for night workers

2.3.2.  Regulation 6(2) of the Working Time Regulations 1998 requires an employer to take all reasonable steps to ensure that the "normal" working hours of a night worker does not exceed an average of eight hours in any 24-hour period. The standard reference period for the calculation of this average is 17 weeks (regulation 6(3)). This is the same period used for the calculation of weekly working time under regulation 4.

2.3.3.  The 17-week reference period over which the average is to be calculated may start from a date set in a "relevant agreement".  If there is no such agreement, the "default" is any period of 17 weeks.

Calculation of average normal hours of work for a night worker

2.3.4.  Regulation 6(5) of the Working Time Regulations 1998 provides for a night worker’s average normal hours of work to be calculated using the following formula:
 

   A   

B - C

 

A	is number of hours during the applicable reference period which are normal working hours for that worker;
B	is the number of days during the applicable reference periods; and
C	is the number of 24-hour periods during that period which comprise of or are included in a rest period spent by the worker in pursuance of his entitlement under regulation 11

 

2.3.5.  For example, if a night worker normally works 4 x 12 hours in each seven-day period, his total hours for the 17-week reference period would be 17(4 x 12) = 816. There are 119 twenty-four hour periods in the reference period and 17 twenty-four hour rest periods, as required by regulation 10. Therefore, the calculation becomes:

816	=  8 hours
119 – 17

2.3.6.  Where a night worker has worked for the employer for less than 17 weeks, the worker's average working time in relevant periods which have actually been worked must not exceed eight hours per 24-hour period.

2.3.7.  The arrangement would allow, for example, a night worker who works for six hours per 24-hour period during (say) the first ten days when work is done to work for ten hours in each ten subsequent 24-hour periods during which work is done - i.e. producing an average of eight hours over the 20-day period of working days.  In that case, of course, the next 24-hour period when work is done could involve no more than eight hours working time.  Any weekly rest period time which is required to be deducted from a full 17-week reference period (e.g. any 24-hour weekly rest period) would also have to be deducted from the shorter period over which any such averaging calculation is made. 

2.3.8.  For the purpose of the limit on daily working time, it is a worker's "normal" hours of work which count and which are limited.  So if a worker's normal hours of work would have been spent working but for unexpected absence (e.g. sickness), it is the "normal" not the "actual" - hours of work which count towards the limit.

2.3.9.  However, the night work limits do not apply in the following circumstances:

Working Time (Amendment) Regulations Where there is a need for continuity of service New regulation 21(c)(i) and (viii) (inserted by regulation 6(b) and (c) of the draft regulations) disapplies the night work provisions where there is a need for continuity of service, as may be the case in relation to doctors in training and workers concerned with the carriage of passengers on regular urban transport services, subject to workers receiving compensatory rest. Foreseeable surge of activity New regulation 21(dd) (inserted by regulation 6(d) of the draft regulations) disapplies the night work limits where there is a foreseeable surge of activity, as may be the case in relation to workers in the railway sector who spend most of their time on board trains; whose activities are intermittent or whose activities are linked to transport timetables and ensuring the continuity and regularity of traffic, subject to those workers receiving compensatory rest.

   

Night work involving special hazards

2.3.10.  For night workers whose work involves special hazards or heavy physical or mental strain, regulation 6(7) and (8) of the Working Time Regulations 1998 sets an eight-hour limit on daily working time to apply without any "reference period". The identification of night work involving special hazards or heavy physical or mental strain can be by means of:

1. the risk assessment which all employers are required to carry out under the Management of Health and Safety at Work Regulations 1999; and

2. a collective agreement or a "workforce agreement" so far as it adds night work to any identified by the risk assessment procedure.

2.3.11.  In the first instance, identification depends on the assessment or the agreement "taking account of the specific effects and hazards of night work".  In the case of the latter, "special hazards" are defined as hazards that have been determined as posing significant risks.

Health Assessments for Night Workers and Transfer from Night to Day Work in Certain Circumstances

2.3.12.  Regulation 7 of the Working Time Regulations 1998 requires an employer to provide a night worker, or a worker before being assigned to duties that would make them a night worker, with the opportunity to have a free "health assessment" (in the case of an adult worker) or a free "health and capacities" assessment (in the case of an adolescent worker working between 10pm and 6am). "Free" means that the assessment must be available without cost to the worker.

2.3.13.  The purpose of the assessment is to determine whether the worker is fit to undertake the night work to which he is assigned. The health and capacities assessment for an adolescent worker will need to consider their physical and psychological abilities to undertake the night work to which he is assigned. Regulation 7 also places a duty on employers to ensure that a worker undertaking night work has the opportunity for such an assessment "at regular intervals".

2.3.14.  The Regulations do not specify the way in which a health assessment would have to be carried out, but a well-designed questionnaire could be used in the first instance to identify individuals whose health might be harmed by night work. These individuals could then be referred to a suitably qualified health professional for further assessment. Such assessments could be provided through an employer's occupational health service, through consultation by the worker with their own General Practitioner (GP), or by an employer inviting a suitable person from a local GP practice to carry out assessments on the employer's premises.

2.3.15.  Health assessments for night workers must comply with medical confidentiality. In other words, its detailed results should not be released as a matter of course to any party other than the worker, unless the worker gives their consent in writing permitting its disclosure, but this does not prevent the disclosure of a simple statement of the workers fitness for night work.

2.3.16.  A night worker who is suffering as a result of working nights should wherever possible be found alternative suitable work (regulation 7(6)).

Working Time (Amendment) Regulations New regulation 18(1) (inserted by regulation 5 of the draft amending regulations) disapplies certain provisions in the case of certain categories of worker. The relevant categories of worker are: workers in the armed forces or emergency services (where their activities conflict with the Regulations); those workers who are covered by sector specific directives; those for whom the HAD will be implemented through other legislation, and, until 31 July 2004, to junior doctors. The provisions which are disapplied are weekly working time and night work limits; the daily, weekly and in-work rest periods; the right to a health assessment if a night worker and pattern of work protection. New regulation 18(2) (also inserted by regulation 5 of the draft amending regulations) disapplies certain provisions in the case of mobile workers covered by the Road Transport Directive. The provisions which are disapplied are the weekly working time and night work limits; the daily, weekly and in-work rest periods; and pattern of work protection. The effect of the new regulation 18 (1) and (2) is to provide all workers covered by the HAD who work nights as a regular course, to free health assessments. This includes mobile workers covered by the Road Transport Directive.

Other Provisions Relating to Night Work

2.3.17.  Employers are required to notify the relevant competent authorities, on request, of any night workers. The Management of Health and Safety at Work Regulations 1999 make provision for appropriate protection and prevention services for all workers, irrespective of whether they work day or night.

Adolescent Workers’ Night Working Time Limits

2.3.18.  In line with the requirements of the Young Workers Directive, the Government is taking action to amend the Working Time Regulations so that adolescents may not ordinarily work at night between 10pm and 6am or 11pm and 7am. However, subject to specified criteria, young workers employed in hospitals or similar establishments and those employed in connection with cultural, artistic, sporting or advertising activities may work throughout the night, while young workers employed in other specified areas may work between 10 or 11pm to midnight and between 4am to 6 or 7am.

4. Rest breaks and rest periods

2.4.1.  This section sets out the daily, weekly and in-work rest entitlements provided for in the Working Time Regulations 1998. The amending regulations extend these entitlements to all non-mobile workers in road, sea, and inland waterways sectors, and sea fishing; to all workers in the aviation sector not covered by the Aviation Directive; and to all workers in the offshore sector. These entitlements may not apply in certain circumstances, for example, doctors in training, workers concerned with the carriage of passengers on urban transport services and certain workers in the rail sector. Where this is the case, workers will be entitled to compensatory rest. Mobile workers in road transport will be entitled to adequate rest.

Daily Rest

2.4.2.  The Working Time Regulations 1998 provide for a rest period of not less than eleven consecutive hours in each period of 24 hours during which a worker works for the employer (regulation 10(1)). The words "during which he works for his employer" in the Regulations means any period which is working time. For adolescent workers, the entitlement is to a rest period of twelve consecutive hours for each 24-hour period (regulation 10(2)).

2.4.3.  The daily rest entitlement can always be met if the appropriate period of rest is given at the end of working time during a day. For example, someone who works between 10am and 2pm has the required entitlement to daily rest (i.e. in effect from 2pm on that day to 10am on the following day) even though there may not be eleven consecutive hours rest during the same day.

2.4.4.  The requirement that daily hours of rest be consecutive for adolescent workers does not apply if work activities are "split up over the day or are of short duration" (regulation 10(3)).

Weekly Rest

2.4.5.  Regulation 11(1) of the Working Time Regulations 1998 provides adult workers with an entitlement to an uninterrupted rest period of not less than 24 hours in each seven-day period. Other provisions of the regulation mean that this particular entitlement is additional to the eleven hours daily rest entitlement provided for under regulation 10(1), except if "objective, technical or work organisation conditions" justify incorporating all or part of that daily rest entitlement into the weekly rest entitlement. The definition of "rest period" provides that the rest period entitlement is additional to any paid annual leave that is to be taken under the entitlement provided for in regulation 13.

2.4.6.  Regulation 11(2) of the Working Time Regulations 1998 also takes up the option in Article 16(1) of the Working Time Directive whereby a standard reference period not exceeding 14 days can be set for the provision of weekly rest entitlement. Employers accordingly have two options available:

1. two uninterrupted rest periods of not less than 24 hours during any such period of 14 days, or

2. an uninterrupted rest period of not less than 48 hours in each such 14-day period.

2.4.7.  Regulation 11(4) of the Working Time Regulations 1998 provides that the seven-day or 14-day period is to start immediately after midnight each Sunday unless a "relevant agreement" has been made to other effect. Regulation 11(5) deals in a similar way with the identification of the start of 14-day periods.

2.4.8.  For adolescent workers, regulation 11(3) of the Working Time Regulations 1998 provides for 48 hours’ rest in each period of seven days during which work is done for the employer.

2.4.9.  Regulation 11(8) of the Working Time Regulations 1998 replicates provisions in the Young Workers Directive which allow an adolescent's weekly rest period entitlement to be reduced from 48 hours to not less than 36 hours, "where justified by technical or organisation reasons".  It also replicates similar provisions in the Working Time Directive, which enable a worker's weekly rest period entitlement to incorporate the daily rest period entitlement under regulation 11(7), where "objective, technical or work organisation conditions so justify".

Rest breaks

2.4.10.  The Working Time Regulations 1998 provide an adult worker with an entitlement to an in-work rest break of 20 minutes when his daily working time is more than six hours (regulation 12(1)), and an adolescent to a 30-minute rest break when daily working time is more than four and a half hours (regulation 12(4)). The duration of the break and the terms on which it is to be provided can be set for workers by a "relevant agreement". However, if there is no such agreement, or such an agreement terminates, the entitlement is to be to an uninterrupted break of at least 20 minutes.

2.4.11.  A relevant agreement about breaks might, of course, deal with matters other than the mere duration of a break.  These might include, for example, whether any notice from a worker to the employer of intention to take the break was necessary. Such an agreement, which satisfied the conditions for derogation, could allow untaken entitlement in respect of a period of working to be reclaimed as an "equivalent period of compensatory rest".

2.4.12.  The word "break" implies that it cannot be taken either at the start, or at the end, of a period of working time.  It follows that a break as provided for cannot overlap with the separate and additional entitlement to "daily rest" (regulation 10). Regulation 12(3) also provides that a worker is entitled to take his rest break away from his workstation if he has one.

2.4.13.  For adolescent workers, the entitlement to daily and in-work rest periods may not apply where work was undertaken because no adult worker was available. In these circumstances the work must be of a temporary nature; the circumstances unforeseen and need to be completed immediately.

2.4.14.  The amending regulations do not apply in the following circumstances:

Working Time (Amendment) Regulations Where there is a need for continuity of service New regulations 21(c)(i) and (viii) (inserted by regulation 6(b) and (c) of the draft regulations) disapplies the daily, weekly and in-work rest provisions where there is a need for continuity of service, as may be the case in relation to doctors in training and workers concerned with the carriage of passengers on regular urban transport services, subject to workers receiving compensatory rest. Foreseeable surge of activity New regulation 21(dd) (inserted by regulation 6(d) of the draft regulations) disapplies the daily, weekly and in-work rest provisions where there is a foreseeable surge of activity, as may be the case in relation to workers in the railway sector who spend most of their time on board trains; whose activities are intermittent or whose activities are linked to transport timetables and ensuring the continuity and regularity of traffic, subject to those workers receiving compensatory rest. Mobile workers in Road Transport New Regulation 24A (inserted by regulation 8 of the draft regulations), excludes mobile workers covered by the HAD from the rest break entitlements under the Working Time Regulations. Instead, in line with the HAD, these workers will be entitled to “adequate rest”.

 

   

5. Derogations

2.5.1.  This section describes the “derogations” that are permitted and the circumstances in which they can be applied. Derogations cannot be applied without providing workers with compensatory rest to make up for any extra work they are required to do except in exceptional circumstances where, for objective reasons, it has not been possible to provide such a period of rest. The draft amending regulations extend these derogations to all non-mobile workers in road, sea, and inland waterways sectors, to sea fishing, to all workers in the aviation sector not covered by the Aviation Directive, and to all workers in the railway and offshore sectors. Derogations will apply to doctors in training, workers concerned with the carriage of passengers on urban transport services and certain workers in the rail sector.

The Government's approach

2.5.2.  When the Working Time Regulations 1998 came into effect, the Government used the permitted exceptions to provide businesses and workers with flexibilities and freedom in the organisation of working time. This approach will be adopted when implementing the Horizontal Amending Directive. In addition, employers have a general duty under health and safety law to protect, so far as is reasonably practicable, the health, safety and welfare at work of their workers.

2.5.3.  Regulations 20 to 23 of the Working Time Regulations 1998 provide for certain entitlements and limits not to apply, or to operate differently in respect of particular workers in certain circumstances. With the exception of the emergency services and those covered by sector specific directives, there are no derogations from:

• The Directive (or the Regulations) as a whole;

• any worker's entitlement to a minimum period of paid annual leave; nor

• pattern of work, such as shift patterns (unless employed in domestic service)

Unmeasured working time derogation

2.5.4.  Regulation 20 of the Working Time Regulations 1998 disapplies regulations 4(1) and (2), 6(1) and (2), 7, 10(1), 11(1) and (2) and 12(1) (i.e. the provisions creating entitlement to minimum daily and weekly rest and breaks, setting the limit for average weekly working hours and on daily hours of work for night workers) for workers:

"... when, on account of the specific characteristics of the activity in which they are engaged, the duration of their working time is not measured or predetermined or can be determined by the workers themselves ......"

2.5.5.  Workers such as senior managers, who can decide when to do their work, and how long they work, are likely to pass this test. Those without this freedom are not.

2.5.6.  The derogation covers not only those activities whose nature means that working time is not "measured" but also activities where (on account of the specific characteristics of the activity concerned) the time it takes to do the work which they may be required to perform cannot be "predetermined", as well as situations in which the activity inherently means that the worker's working time can be determined by the worker.

2.5.7.  It is not possible to say exactly what activities would fall into the relevant category and which would not. Once again, in any disputed case concerning the application of the derogation in particular circumstances, only the courts could ultimately decide the matter.

Special circumstances

2.5.8.  Regulation 21 sets out circumstances in which the entitlements to daily, weekly and in-work rest periods, and the night work limits may be excluded subject to the worker receiving compensatory rest. The Working Time Regulations give all workers a right to 90 hours rest per week (the total of daily and weekly rest periods). Compensatory rest is a period of rest the same length of time as the period of rest that a worker has missed.

2.5.9.  The amending regulations permit derogations from the Working Time Regulations in respect of:

Working Time (Amendment) Regulations Where there is a need for continuity of service New regulations 21(c)(i) and (viii) (inserted by regulation 6(b) and (c) of the draft regulations) disapplies the night work limits and daily, weekly and in-work rest provisions where there is a need for continuity of service, as may be the case in relation to doctors in training and workers concerned with the carriage of passengers on regular urban transport services, subject to workers receiving compensatory rest. Foreseeable surge of activity New regulation 21(dd) (inserted by regulation 6(d) of the draft regulations) disapplies the night work and daily, weekly and in-work rest provisions where there is a foreseeable surge of activity, as may be the case in relation to workers in the railway sector who spend most of their time on board trains; whose activities are intermittent or whose activities are linked to transport timetables, subject to those workers receiving compensatory rest.

 

“Collective”, “relevant” and “workforce” agreements

2.5.10.  The definitions set out in regulation 2(1) of the Working Time Regulations 1998 also include:

1. "collective agreement", meaning an agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers' associations, on the condition that such an agreement is with an independent trade union;

2. "workforce agreements" (see below); and

3. "relevant agreement" - a term used at many points throughout the Regulations - meaning an agreement in writing which is legally binding between the worker and employer (and which might, of course, be the result of a "collective agreement" or a “workforce agreement”).

Workforce Agreement

2.5.11.  A "workforce agreement" was a new concept when the Working Time Regulations were introduced.  It enables an agreement to be made between an employer and any workforce or part of a workforce whose terms and conditions are not set by collective bargaining, so as to allow the use of derogations provided for in the Regulations by means of an agreement made collectively but other than with a trade union, and allows for such agreements to be used to establish the way in which particular entitlements and limits are to apply to the workers covered by such an agreement.   

2.5.12.  Schedule 1 to the Working Time Regulations 1998 sets out conditions and requirements which must be satisfied for an agreement to constitute a “workforce agreement” for the purposes of the Regulations. These are as follows:

1. Any such agreement must be made in writing, specifying the date from which the agreement is to apply to the workers concerned. 

2. Before the agreement is signed, all those workers to whom it is to apply must be provided by the employer with copies of the text of the agreement and such guidance as they might reasonably require in order fully to understand its effect.

3. The general rule is that an agreement, which applies to all the relevant members of the workforce, should be signed by the representatives of the workforce and an agreement which applies to all of the relevant members who belong to a particular group should be signed by the representatives of the group to which the agreement applies. In either case, however, a representative who is not a relevant member of the workforce, on the date on which the agreement was first made available for signature, is excluded. In addition, if the employer employed 20 or fewer workers on that date, then the agreement is to be signed either by the appropriate representatives or by the majority of the workers employed by that employer.

4. The agreement must specify a date no later than five years after that commencement date on which the agreement will cease to have effect.

2.5.13.  If an agreement is to be made by representatives, their number may be determined by the employer. Before making a decision about such matters, it is expected that an employer would want to seek and take account of views of members of the workforce, but this is not a mandatory obligation.

2.5.14.  Any representative must be elected by votes cast by relevant members of the workforce in a properly conducted secret ballot. So as far as reasonably practicable, voting must be in secret, votes cast be counted fairly and accurately, and each elector must have as many votes as there are representatives to be elected.  Any candidate for election must be one of the relevant members of the workforce on the date of the election, and no such member can unreasonably be excluded from standing as a candidate.

2.5.15.  Through insertions into the Employment Rights Act 1996, the Working Time Regulations protect any worker from detriment imposed by the employer because of a refusal to sign a workforce agreement. Once an agreement is signed by the appropriate workforce representatives or individuals, however, it will apply to all members of that workforce or group of workers, whether they signed it individually or not.

2.5.16.  The use of workforce agreements may be particularly apt for small and medium size enterprises, perhaps where there are no union members among their workforce. Agreement by signature from the majority of relevant members of the workforce may be appropriate and practical for very small businesses, with election arrangements being confined to larger ones.

Derogations available to adolescent workers

Entitlement to daily rest and to breaks - the “force majeure” derogation

2.5.17.  Regulation 27 of the Working Time Regulations 1998 makes provision for the derogation allowed in Article 13 of the Young Workers Directive. This covers "work by adolescents" in the event of "force majeure". It is a tightly constrained derogation, under which entitlements to daily rest periods and breaks can be modified (the derogation cannot be applied to an adolescent's entitlement to minimum weekly rest period).

2.5.18.  The particular conditions which must all be satisfied are that:-

1. the need for the work concerned must arise "due to unusual or unforeseeable circumstances, beyond the employer's control", or because of "exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer";

2. the work required must be "of a temporary nature" and "must be performed immediately";

3. no adult worker is available to do the work in place of the adolescent or adolescents.

Daily and weekly rest period - other derogation

2.5.19.  Article 10(4) of the Young Workers Directive allows derogation in respect of daily and/or weekly rest entitlement. Derogation may be allowed by law, provided that there are objective grounds for so doing and provided that the adolescent worker concerned is granted appropriate compensatory rest. The derogation applies to work performed in the shipping and fisheries sectors; the armed forces or the police; work performed in hospitals and similar establishments; agricultural work; tourism, hotel and catering and work which is split up over the day.

Working Time (Amendment) Regulations Adolescent workers in the excluded sectors (road, rail, air, sea, and inland waterways transport, seafishing and the offshore sector) are entitled to daily weekly and in-work rest periods specified in regulations 10, 11 and 12 of the Working Time Regulations 1998.

 

6. Paid annual leave

2.6.1.  This section sets out the arrangements for the calculation of paid annual leave. The amending regulations extend the entitlement to paid leave to all non-mobile workers in the road, sea and inland waterways sectors and sea fishing; to all workers in the aviation sector not covered by the Aviation Directive; to all workers in the rail and offshore sectors and, from 1 August 2004, to junior doctors.

Annual leave entitlement

2.6.2.  Regulation 13 of the Working Time Regulations 1998 provides both adult and young workers with an entitlement to "paid annual leave of at least four weeks", and that this period "may not be replaced by an allowance in lieu, except where the employment relationship is terminated".

2.6.3.  A typical worker working 5 days a week, would be entitled to 20 days’ annual leave. A part-timer, working two days a week, would have a right to eight days’ paid annual leave.  If a part-timer's working time is set in terms of hours, then their annual leave might be expressed in terms of hours too. In the case of a worker working 24 hours a week it would translate to 96 hours’ annual leave. Where a worker works irregular hours, the worker would have a right to annual leave that would allow them to be away from the place of work for four weeks and receive pay equivalent to what they might reasonably expect from a normal working week. The leave entitlement may only be taken as leave in the leave year to which it relates - though employers and workers would, of course, remain free to agree to enhance contractual paid leave to take account of any leave entitlement due but not taken for a particular year.

2.6.4.  The entitlement to paid annual leave begins on the first day of employment. However, the Regulations provide for a system of accrual during a worker’s first year of employment. This means that the entitlement accrues during the first year of employment pro rata to the proportion of the year which has been worked.

2.6.5.  Regulation 13(3) of the Working Time Regulations 1998 sets out the arrangements which will determine a worker's "leave year" - i.e. the time during which entitlement to paid leave will accrue and during which the leave must be taken.

2.6.6.  First employers and workers can reach agreement as to the date on which the leave year will start, if that is a "relevant agreement". This could cover cases in which leave year arrangements had been so established before the draft amending Regulations came into force.

2.6.7.  Secondly, where there is no such agreement, or an agreement is terminated, "default" arrangements apply. Under these:

1. if the worker started work with the employer before the date when the draft amending Regulations came into force, the worker's leave year would start on the draft amending Regulations' commencement date (and each subsequent leave year will start on the anniversary of that date);
    

2. if the worker started work with the employer after the date on which the draft amending Regulations came into force, the worker's leave year would start on the date when the employment begins (and each subsequent leave year will start on the anniversary of that date).

Calculation of holiday pay

2.6.8.  Where a worker's entitlement to paid annual leave is paid in lieu because employment terminates during a leave year, regulation 14 of the Working Time Regulations 1998 provides the worker with a right to such proportion of their leave entitlement as is equivalent to the proportion of the leave year worked. Regulation 14 requires that an allowance in lieu be paid to a worker who has not taken this full entitlement.  The sum due in each case can be provided for in a relevant agreement. In the absence of a relevant agreement, the sum in each case should be determined by the following formula:

(A x B) - C

where:

A	is the period of leave to which the worker is entitled under regulation 13;
B	is the proportion of the worker's leave year which expired before the effective date of termination; and
C	is the period of leave taken by the worker between the start of the leave year and the effective date of termination.

Thus, taking the case of a worker who works five days a week who left his employer six months into the leave year and had taken only three days’ leave.

(20 x 0.5) - 3 = 7

Therefore the employer should pay the worker the equivalent of 7 days’ pay.

2.6.9.  The Government also considers that an employer should be able to make arrangements, through a relevant agreement, such as a contract of employment, to ensure a worker received an entitlement to no more paid leave than was properly due to them, i.e. an equivalent portion of the entitlement to the proportion of the leave year worked. Regulation 14(4) of the Working Time Regulations 1998 allows this to happen.

Notice Requirements

Employers and workers may agree to modify or disapply the notice requirements.

2.6.10. In the absence of such disapplication or variation, however:

1. an employer can require a worker to take all or any of the leave to which the worker is entitled under the Working Time Regulations 1998 on particular dates provided that the worker is given written notice at least twice as many days as the period of leave in question (regulation 15(2));

2. a worker is required to give written notice to the employer of intent to take up any or all of the leave entitlement, specifying the dates on which leave is to be taken (and, if only part of a day is to be taken, its duration on that day). The notice period should be at least twice the period of the leave in question.  An employer may refuse the worker permission to take leave requested. To do so, they must notify the worker within a period equivalent to the period of leave requested.

Arrangements For Determining Due Pay

2.6.11.  Regulation 16 of the Working Time Regulations 1998 sets out the arrangements that will determine the amount of pay due to a worker for any period taken as paid annual leave entitlement.  Sections 221-224 of the Employment Rights Act 1996 define what a week’s pay amounts to.  Regulation 16(4) and (5) deals with the relationship between rights to pay under the regulation and rights to pay under the worker's contract.

Working Time (Amendment) Regulations New regulation 18 (inserted by regulation 5 of the draft regulations) disapplies the entitlement to paid annual leave to the police, armed forces and civil protection services. The entitlement is also disapplied where the provisions of the HAD are being implemented through amendments to the Merchant Shipping legislation (as is the case for sea fishermen and mobile workers on inland waterways) and to workers covered by a sector specific directive (as is the case for crew members on board civil aircraft).

7. A worker's entitlement

2.7.1.  Section 45A of the Employment Rights Act 1996, provides that a worker has a right not to be subjected to any detriment by any act or deliberate omission of his employer on the grounds that the worker refused to forgo a right conferred on him by the Working Time Regulations.  An employer is also required to take any necessary measures to ensure that the worker can take up an entitlement under those Regulations.  If, however, a worker wishes to work when he is “entitled” not to, then the employer may let the worker do so subject to this not involving an otherwise unlawful act (such as posing a risk to health and safety, or ignoring an applicable limit on weekly working time).

8. Enforcement

2.8.1.  Enforcement of the Working Time Regulations is on the basis that effective implementation demands that a failure to observe the limits in respect of a worker should render an employer liable to criminal law sanctions. The Working Time Directive (93/104/EC) provides protection for workers against detriment or discrimination for refusing to work in breach of an applicable limit. In addition, employers have a statutory duty to observe the particular limits on working time.

2.8.2.  Regardless of the application and observance of particular limits on working time, it remains the case that employers have a general duty under health and safety law to protect, so far as is reasonably practicable, the health safety and welfare at work of their workers.

The proposed approach

2.8.3.  In line with existing enforcement procedures the proposed enforcement arrangements for the excluded sectors represent the "best fit" with the existing framework of law.

Offences

2.8.4.  Enforcement of the current Working Time Regulations is divided between the Health & Safety Executive (HSE) and Local Authorities. The HSE enforces the limits (weekly and night working time) and health assessments in factories, building sites, mines, farms, fairgrounds, quarries, chemical plants, nuclear installations, schools and hospitals. Local authority officers enforce these regulations in shops and retailing, offices, hotels and catering, sports, leisure and consumer services. Enforcement is in response to complaints received from individuals.

2.8.5.  We propose that, in general, the HSE and Local Authorities will enforce the Working Time Regulations as amended by the Horizontal Amending Directive. However, where more appropriate enforcement bodies exist, they may take on work that would otherwise fall into HSE’s remit; for example, the Maritime and Coastguard Agency (MCA) will enforce for sea fishermen and mobile workers on inland waterways.

2.8.6.  As with the Working Time Regulations 1998, it is proposed that the working time limits for night workers (regulations 4(1) and (2), 5(1), (2) and (6), 6(1), (2) and (6) and regulation 21 (as far as it applies where regulation 5(1), (2) or (6) are modified or excluded) and regulation 7) should be enforced in the same way as current health and safety at work legislation.

2.8.7.  Enforcement of health and safety law in particular premises is currently undertaken in accordance with good practice principles. Those principles currently mean that enforcing officials explain to an employer what remedial action they need to take and offer the employer the right to make representations before commencing any legal action against the employer.

2.8.8.  Advice and warnings usually precede any more formal action, such as the issue of a notice requiring changes within a specified period of time. Notices can, however, be an effective and quick means of getting employers to take necessary corrective action without delay, and without the disruption and inconvenience of having to go to court. Appeals against a notice can be made by an employer to an Employment Tribunal.

2.8.9.  Ultimately, however, the full range of sanctions may be brought to bear against an employer acting unlawfully. These would include, on conviction, fines and even imprisonment if a requirement imposed by an improvement notice was contravened. The sanctions in current health and safety legislation ensure that the enforcing authorities can obtain any access to premises, or information or records that they need from employers.

Working Time (Amendment) Regulations Non-mobile workers covered by the HAD will automatically be covered by the existing enforcement arrangements on working time limits, health assessments if a night worker and protections for young workers. New regulation 28(1)(c) (inserted by regulation 9 of the draft regulations) extends the provision for adequate rest to mobile workers.

Complaints and remedies available from an Employment Tribunal

2.8.10.  Regulation 30 of the Working Time Regulations 1998 enables a worker to seek redress through an Employment Tribunal where the employer is failing to comply with the entitlements to minimum daily, in-work and weekly rest breaks/periods; paid annual leave; or to provide compensatory rest.

Working Time (Amendment) Regulations Non-mobile workers covered by the HAD will automatically be covered by the existing arrangements to seek redress through an Employment Tribunal where an employer has refused the entitlements to daily and weekly rest periods; in-work rest breaks; and paid annual leave. New regulation 24A (inserted by regulation 10 of the draft regulations) entitles mobile workers to seek redress through an Employment Tribunal where an employer has refused to allow adequate rest.

2.8.11.  Employment Tribunals provide an informal, accessible means for individuals to assert statutory rights and protections relating to their employment.

2.8.12.  A complaint to the Employment Tribunal should be made within three months of the act or omission complained of, but this period may be extended if the Tribunal agrees that it was not reasonably practicable to bring the complaint within three months. Workers who wish to make a complaint can seek advice from the independent Advisory, Conciliation and Arbitration Service (ACAS).

2.8.13.  These rights of complaint supplement the separate remedies which could be claimed from a Tribunal if a worker is subjected to any detriment as a result of asserting due entitlement. Where a complaint is upheld, the Tribunal makes a declaration to that effect.

2.8.14.  In addition, the Tribunal could also decide to make an award of compensation by the employer to the worker. It would do so with regard to both the employer's default in refusing to permit the exercise of the worker's entitlement, and any loss sustained by the worker as a consequence of that default.

2.8.15.  Protection against detriment would cover a wide range of discriminatory actions, such as denial of promotion, facilities or training opportunities which the employer would otherwise have offered or made available. It could even cover any excessive reduction in remuneration consequent upon a reduction in the worker's working time. Such a reduction could also amount to breach of contractual obligations for which the worker would have a separate basis for a civil law claim.

Records

2.8.16.  In the event of a dispute between a worker and employer, the employer will be required to supply documentary evidence to the enforcing authority, to enable them to conduct a proper assessment without the need for a full hearing in court.  Regulation 9 of the Working Time Regulations 1998 requires employers to keep records that are adequate to show the limits in regulations 4(1), 6(1) and (7), and 7(1) and (2) have been complied with. This allows employers flexibility as to what records they keep as long as they are able to show that they have complied with the regulations. Employers will be required to keep records for a period of 2 years; this period is considered to provide sufficient context for considering any potential breach of the working time limit.

Civil liability

2.8.17.  The Regulations do not exclude an employer's "civil liability" in respect of the application of limits on working time required by the Regulations. So it would be possible for a worker to sue for damages if quantifiable loss is incurred because of having had to work beyond any such limit, or because of denial of a night worker's entitlement to assessment or transfer.