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WORKING
TIME REGULATIONS
SECTION
8: MORE ABOUT THE APPLICATION OF THE REGULATIONS
This section
contains more information on:
- Exceptions
to the rules
- Keeping
records
- Enforcement
More
about exceptions to the rules
There are
four classes of exceptions where some of the rules may not apply.
1
Agreements
In general,
employers
and workers can agree that the night work limits, rights to rest
periods and rest breaks may be varied, with the workers receiving
"compensatory rest" (see below). They may also agree
to extend the reference period for the working time limits up
to 52 weeks.
These agreements
can be made by ‘collective agreement’ (between the employer and
an independent trade union) or a ‘workforce agreement’. If a worker
has any part of their conditions determined by a collective agreement
they can not be subject to a workforce agreement.
A workforce
agreement is made with elected representatives of the workforce
in most cases (see below). A workforce agreement can apply to
the whole workforce or to a group of workers. To be valid, a workforce
agreement must:
- have been
circulated in draft to all workers to whom it applies together
with the guidance to assist their understanding of it;
- be signed
before it comes into effect either;
- by all the
representatives of the members of the workforce or group of workers;
or
- if there
are 20 workers or fewer employed by a company, either by all
representatives of a workforce or by a majority of the workforce;
- have effect
for no more than five years.
2
Special circumstances
The night
work limits (including the limit for special hazards), rights
to rest periods and rest breaks do not apply where:
- A worker
works far away from where he or she lives (this includes
offshore work). Or he or she constantly has to work in different places making
it difficult to work to a set pattern.
- The work
involves security or surveillance to protect property or individuals.
- The job
requires round-the-clock staffing as in hospitals, residential
institutions, prisons, media production companies, public utilities,
and in the case of workers concerned with the carriage of
passengers on regular urban transport services or in
industries where work cannot be interrupted on technical
grounds.
- There are
busy peak periods, such as may apply seasonally in agriculture,
retail, tourism and postal services.
- An emergency
occurs or something unusual and unforeseen happens.
- Where the
worker works in rail transport and his activities are
intermittent; he spends his time working on board trains; or
his activities are linked to transport timetables and to
ensuring the continuity and regularity of traffic.
In these cases,
(except for the offshore sector) the reference period for the weekly working time limit is extended
from 17 to 26 weeks. In addition workers are entitled to "compensatory
rest".
What
is compensatory rest?
"Compensatory
rest" is normally a period of rest the same length as the period of
rest, or part of a period of rest, that a worker has missed.
The regulations
give all workers a right to 90 hours of rest in a week. This is
the total of your entitlement to daily and weekly rest periods.
The exceptions allow you to take rest in a different pattern to
that set out in the regulations.
The principle
is that everyone gets his or her entitlement of 90 hours rest
a week on average, although some rest may come slightly later
than normal.
3
Unmeasured working time
The working
time limits and rest entitlements, apart from those applicable to
young workers, do not apply if a worker can decide how long he or
she works.
A test, set
out in the regulations, states that a worker falls into this category
if "the duration of his working time is not measured or predetermined,
or can be determined by the worker himself".
An employer
needs to consider whether a worker passes this test. Workers such
as senior managers, who can decide when to do their work, and
how long they work, are likely to pass the test. Those without
this freedom to choose are not.
4
Partly unmeasured working time
There is an
exception for workers who have an element of their working time
pre-determined, but otherwise decide how long they actually work.
There is a
test. This is that:
"the
specific characteristics of the activity are such that, without
being required to do so by the employer, the worker may also
do work [in addition to that which is measured or pre-determined]
the duration of which is not measured or pre-determined or
can be determined by the worker himself".
Any time spent
on such additional work will not count as working time towards
the weekly working time or night work limits. Simply put, additional
hours which the worker chooses to do without being required to
by his employer do not count as working time; therefore, this
exception is restricted to those that have the capacity to chose
how long they work. The key factor for this exception is worker
choice without detriment.
Some or none
of a worker’s working time may meet the test. Any working time
that does meet it will not count towards the 48-hour weekly working
time limit or the night work limits.
This exception
does not apply to:
- working
time which is hourly paid;
- prescribed
hours of work;
- situations
where the worker works under close supervision;
- any time
where a worker is expressly required to work, for example attendance
of meetings;
- any time
a worker is implicitly required to work, for example because
of the loading or requirements of the job or because of possible
detriment if the worker refuses.
Who
will it apply to?
No one can
be forced to work more than an average of 48 hours a week against
his or her will; this does not remove this protection from
any worker. It applies to working time – it is not confined
to any particular category of worker (with the exception that
young workers are excluded), but applies where the specific
characteristics (i.e. the nature) of their work meet the test
set out above.
Some
examples
The examples
given are for illustrative purposes and do not provide an exhaustive
list.
- Worker
A is paid by the hour. He occasionally works overtime, for
which payment is made. The working time does not fall within
the scope of this exception because it is measured.
- Worker
B’s work is closely supervised. B is told what to
do and when. B’s working time does not fall within the
scope of this exception, as it is not determined by B.
- Worker
C’s contract specifies that she is to work 42 hours a
week, but she regularly works longer because the volume of work
is greater than could be done in the time. The nature of her
job means that C works to deadlines and has to complete
her work. She cannot control the volume of the work. The extra
hours do not fall within the scope of this exception because
she is required to do the work.
- Worker
D’s contract also requires a working week of 42 hours,
but the volume of work coming to him is greater than someone
could reasonably be expected to do in that time. However, he
has discretion and a clear choice over how much work is done,
how his work is done and how to meet his objectives, for example
he can prioritise his tasks and so, if he chose to, he could
limit his working week. Therefore, to the extent that he can
limit them, the time worked beyond that required by his contract
falls within the scope of this exception.
- Worker
E, whose contract requires a working week of 40 hours, works
in an environment where colleagues habitually do a 12-hour day
even though the work does not always necessitate such hours.
Worker E works the long hours because she is lead to
believe that her employer considers it unacceptable to work
shorter hours. Therefore, the time does not fall within the
scope of this exception because she is required by her employer
to work the extra time.
- Worker
F has a managerial or professional role which allows him
to decide how and when he works, chooses what is done, establishes
priorities and determines the time and effort that are devoted
to tasks. Time worked above F’s contracted hours will
fall within the scope of this exception because he can determine
the volume of his work.
- Worker
G for reasons of personal interest or self-motivation, chooses
to go beyond the work that is expected of her, for example spending
additional hours studying, thinking and reading about her work
in addition to any formal employer-required training. Such time
will fall within the scope of this exception because G
determines the duration of the additional hours of work.
- Worker
H is a well paid sales representative who chooses to
work beyond the hours necessary to meet her targets for reasons
of personal motivation, for example additional commission. These
additional hours will fall within the scope of the exception
because H determines the volume of her work.3
More
about keeping records
What
records do employers need to keep?
If you are
an employer, you need to keep records that show:
- The weekly
working time and night work limits are complied with in your business. It is
for you to determine what records need to be kept for this purpose.
You may be able to use existing records maintained for other
purposes, such as pay, or you may need to make new arrangements.
- You do
not have to keep a running total of how much time workers work
on average each week. How you monitor your workers' hours depends
on particular contracts and work patterns.
- You need
only make occasional checks of workers who do standard hours
and who are unlikely to reach the average 48-hour limit. However,
you should monitor the hours of workers who appear to be close
to the working time limit – and make sure they do not work too
many hours.
- You need
to keep an up-to-date record of workers who have agreed to work
more than 48 hours a week, but you do not need to record how
many hours they actually work.
- You must
offer regular health assessments to night workers. You should
keep a record of: the name of the night worker, when an
assessment was offered (or when he or she had the assessment
if there was one) and the result of any assessment. Records
must be kept for 2 years.
More
about enforcement
How
are the regulations enforced?
Enforcement
is split between different authorities. The limits and health
assessment requirements (for night workers), are enforced by the
Health and Safety Executive (HSE), local authority environmental
health departments, the Civil Aviation Authority (CAA) and the
Vehicle and Operator Services Agency (VOSA). The entitlements to rest and leave are enforced
through employment tribunals.
Enforcement
of employers' obligations
The HSE enforce the limits and obligations to provide health
assessments in factories, building sites, mines, farms,
fairgrounds, quarries, chemical plants, nuclear installations,
offshore installations, railways, schools, hospitals and in
relation to mobile workers in road transport other than those
referred to below i.e. employed taxi drivers and couriers.
Enforcement will be in line with the Health and Safety
Commission's (HSC) Enforcement Policy Statement.
Local authority officers ensure the regulations are followed in
shops and retailing, offices, hotels and catering, sports, leisure
and consumer services.
CAA enforce the limits and obligations to provide a health
assessment for night workers, in relation to a mobile worker who
works in general aviation, including the general aviation
corporate sector.
VOSA enforce the working time limits and health assessments if a
night worker in relation to a mobile worker covered by:
- the
United Kingdom domestic driver's hours code, which is set out
in Part VI of the Transport Act 1968
VOSA also
enforce the health assessments if a night worker, in relation to a
mobile worker to whom one or more of the following applies:
- Council
Regulation (EEC) 3820/85 or
- the
European Agreement concerning the Work Crews of Vehicles
engaged in International Road Transport (AETR) of 1st July
1970
Entitlements
If you are
a worker and you feel you are not receiving your entitlements,
we suggest you take the following steps:
- Talk to
your manager, you may be able to settle the matter straight
away.
- Contact
a trade union representative (if you have one). They will be
able to advise you what to do.
- If you
cannot resolve the matter, you can make a claim at an employment
tribunal.
If you want
to make a claim under the regulations, the Advisory, Conciliation
and Arbitration Service (ACAS) will offer the services of a
conciliator
to help the employer and worker to reach a settlement without
the need for a tribunal hearing. Part of the conciliator’s role
is to explain how tribunals work and how a tribunal arrives at
decisions. This service is free of charge.
If you want
to take a complaint to a tribunal, you should do so within three
months. The tribunals offer an informal way of ensuring that workers
are given their rights. These tribunals generally have three members:
a legally qualified chairperson and two other lay members who
have experience of dealing with work-related problems.
For
contact details click here
3
It should be noted that under National Minimum Wage (NMW)
legislation, employers are required to keep records sufficient to
show that the NMW has been paid. Therefore, it is unlikely that a
worker earning close to the NMW would fall within the exception as
their working time should be measured.
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