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Employment
Working time regulations
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Working Time Regulations
At the employment law presentation given by rhw solicitors at Whiteley Village, Walton on Thames, Surrey on the 16 November 2005 a number of issues were raised regarding the Working Time Regulations and in particular night working. We felt that it would be helpful to providers to follow up with a Q&A format to reiterate and provide more detailed information on this topic which is clearly of great interest to the sector. Q. Do the Working Time Regulations 1998 apply to the care sector? A. Yes the Working Time Regulations 1998 do apply to the care sector such that a worker must not work in excess of an average of 48 hours per week (unless there is a valid express agreement to the contrary). The care sector is not excluded from the Regulations. However, certain provisions of the regulations are relaxed where the workers’ activities involve the need for continuity. This is necessary for most care staff in homes but such continuity would not be necessary for administrative staff in the same home. Where the workers’ activities do involve the need for continuity, this is one of the “special cases” referred to in the regulations. This means that when calculating the worker’s average weekly hours, the usual reference period of 17 weeks can be extended to a 26-week period for those care staff in homes where continuity is necessary. Q. A. • • • What about rest breaks? The regulations normally provide for: a weekly rest period of not less than an uninterrupted 24 hour period per week; and a daily rest period of 11 consecutive hours per 24 hour period; and rest breaks of 20 minutes if working longer than 6 hours.
If a care worker works in a home, where continuity is necessary, they can be required to work during a rest period or rest break. However, you must allow the worker to take an equivalent period of compensatory rest wherever possible. This should be for a period of rest that is the same length that the worker has missed. The
regulations give all workers a right to 90 hours of rest in a week but in the “special cases” it is permissible for this rest to be taken in a different pattern to that set out in the regulations. Q. I use agency staff. Do the Working Time Regulations still apply? A. Whoever employs the agency worker is responsible for ensuring that the regulations are complied with in respect of that worker. An agency worker is likely to be employed by the agency but it can be the case, for the purposes of the limits and entitlements under the regulations, that the agency worker is employed by whoever pays them, which may be you. Alternatively, you may have entered into a contract with the agency that stipulates that you must ensure that the necessary requirements under the regulations are complied with. Either way, we recommend that agency workers are treated the same as your permanent staff. Q. I have employees who work 12-hour shifts at night. Am I in breach of the Working Time Regulations that apply to night working? A. Firstly, we need to consider what makes somebody a night worker. If somebody works at least 3 hours of night time (normally between 11pm and 6am) on most days they work or often enough to be said that they work such hours on a regular basis, then they are considered to be a night worker. If somebody only works occasionally at night, they are not considered to be a night worker. If a night worker works less than 48 hours a week on average and does not exceed more than 8 hours per 24 hours on average, including overtime, then they will not exceed the night work limits in the regulations. When calculating the worker’s average hours, the usual reference period of 17 weeks can be extended to a 26-week period where continuity of the workers’ activities is necessary. The calculation is done by: adding the total number of hours worked in the reference period . totalling the number of days in the period, after subtracting the number of rest days which the worker is entitled to under the regulations, i.e not less than 24 hours/1 day per week. dividing the total hours by the number of days in the period that the worker could be required to work.
For example, if a worker works say four 12-hour night shifts per week each week the following sets out how to calculate the average, Four 12-hour shifts equates to 1248 hours over a 26 week period (26 x (12 x 4). As the worker is entitled to no less than 26 days rest in the 26 week period this figure is subtracted from the total number of days in the period to give the number of days he/she could work, i.e 26 x 7 = 182 – 26 = 156 days. To calculate the daily average working time we divide the total hours by the number of days a worker could be required to work (1248 / 156) and this equals 8 hours per day on average. The regulations are therefore not breached as this does not exceed 8 hours per 24 hours on average. The regulations impose an obligation on you, the employer, to take all reasonable steps to ensure that the regulations are complied with. It must be noted that where a night worker’s work involves heavy physical or mental strain, the regulations provide an absolute limit of 8 hours on each actual 24 hour period, i.e not an average. There is an absolute duty on employers to comply with this regulation as opposed to taking reasonable steps alone. Q. Are there any other aspects of the Regulations that I need to consider with regard to night workers? A. You must ensure that each night worker has the opportunity to attend a confidential free health assessment before starting night work and thereafter at regular intervals (e.g at least once a year). You do not have to ensure that the employee attends the health assessments, just that they are given the opportunity to attend. The Government has suggested that a questionnaire prepared by a qualified occupational health practitioner may suffice initially and then if there is any concern about the worker being fit for night work or if there is an indication that a worker may be harmed by night work, then that individual should be referred for a medical examination to be carried out. If a night worker does suffer from health problems associated with night work then they must be transferred to suitable day work, whenever possible. Q. Is it possible to avoid the Working Time Regulations?
A. It is possible to avoid the 48 hour working week limit by way of an opt out agreement set out either in the contract of employment or as a separate agreement. It is only possible to opt out of the regulations relating to rest periods and rest breaks or the length of night working limits by way of a collective or workforce agreement. Q. What happens if the Working Time Regulations are breached? A. If the regulations are breached in relation to the 48-hour week or the provisions relating to length of night work then the employer is guilty of an offence and may be liable to a fine. If the regulations are breached in relation to the worker’s entitlement to rest, rest breaks, compensatory rest and annual leave then the worker could bring a complaint before an employment tribunal. An award for compensation could be made and there is no upper limit to the compensation for such a tribunal claim. Please note that the information contained in this article is for information purposes only and is not intended to provide comprehensive legal advice. If you wish to discuss or comment on any aspect of this article, then please do not hesitate to contact Antonia Spring of rhw solicitors on freephone 0800 0744385 or email: Antonia.Spring@rhw.co.uk. Also, if there are any other legal matters that require our assistance, please do not hesitate to contact us as we would be happy to advise you. Website: www.rhw.co.uk January 2006 (1,375 words)
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