by Pay Magazine

The UK is one of a small number of European Union (EU) member states which have chosen to introduce the opt-out to the maximum 48 hour average working week. This allows employees to opt to work a longer working week than the maximum set out in the EU Working Time Directive (WTD). This opt out has been under threat for a number of years now – with the European Parliament wanting to get rid of it altogether and the European Commission (EC) pushing for the rules to be tightened – but so far the UK has managed to retain it.

As recently as June member states held discussions on amended proposals from the EC, and indicated that it wants to look again at the opt-out and there is likely to be further meetings on the matter in October.

Whatever happens to the opt-out in the long term it is important to remember that even if employees have signed up to it there is still a duty of care on the employer. “I don’t think any sensible employer takes much comfort from the fact that they have got somebody to sign an opt-out,” says Frank Ryan, a partner and head of employment at Courts & Co. “Cases show that you can’t. If you know someone is getting stressed from working too many hours the fact they have signed an opt-out won’t be of much help.”

Also, as the European Court of Justice (ECJ) emphasised in Pfeiffer how the employee signs up to the opt-out is important too. The court ruled that consent to work beyond the 48 hour average must be given “individually, expressly and freely.”

Both the opt-out and monitoring working hours are simple when compared to determining the link between long hours and stress.

CASE LAW

When it comes to case law it is telling that there have been a limited number of Working Time Regulations (WTR) related cases in the last year or so, more common are stress cases, at the root of which are long hours.

A ruling from the ECJ on 7th September on work breaks was one of a few exceptions. The ECJ found that the WTR did not fulfil the requirements of the WTD because it only recommended that employers give opportunities to take minimum rest breaks, rather than obliging them to ensure the breaks are taken. Amicus took the matter to the ECJ because it believed that Department of Trade and Industry guidance endorsed and encouraged non-compliance with the directive.

REQUIREMENTS OF WTR

The main requirements of the Working Time Regulations re:

HSE PROSECUTIONS

Employment tribunals are not the only risk that employers run, as a recent case highlights. Mark Fiebig was killed in a car crash after working 76 hours in four days. The Health and Safety Executive prosecuted Cambridgeshire potato company, The Produce Connection, even though Mr Fiebig was on his way home from work when the accident occurred. The company was fined £30,000 and ordered to pay costs of £24,000 for breaching health and safety legislation.

“The reason why employers would have been surprised is the person in this case was actually on his way home from work having completed his shift when the accident happened,” explains Sabeeha Khan of law firm Irwin Mitchell. “Most employers up until now have thought that as soon as an employee clocks off their duty as an employer ceases.”

She warns: “This case really should be sending out alarm bells to any industry where long hours are common. They need to be in line with this case and be aware of it.”

MONITORING & TRACKING HOURS

The original UK provisions required employers to keep detailed records of the hours people were doing. This restriction was removed in December 1999, meaning organisations are now simply required to keep a record of who has signed an opt out. This should not be taken to mean that a company has no obligation to monitor the hours worked by employees, as the only way to ensure you are compliant with the requirements is to keep track of working hours. Often time and attendance software can be used to monitor WTD compliance. For example Softworks have developed a specific WTR module which is now standard in the core product. For more information see our website on http://www.softworks-workforce.com/working_time_directive.html

ON THE ROAD

Employers need to be particularly wary of WTR when it comes to setting fleet policy. Dean Woodward, consulting and risk manager at DaimlerChrysler Fleet Management, advises companies on fleet policy and says that WTR can be quite contentious. The key areas to be aware of are the time involved in the journey, the distance covered and regular breaks.

It is important to have a target for appointments, but setting a target for miles is crucial too. As Woodward points out three appointments in London might not involve much driving, whereas completing three appointments in East Anglia might involve distances of 150miles between each. Weather conditions are the hardest to pinpoint as you will get the eager people who will be out all day,” says Woodward. “This is harder to control, especially if they are field sales and you don’t see when they are coming or going.”

The legal requirements should be made clear to employees, e.g. to take breaks. As Woodward says, “It’s about prevention – if they have taken the correct steps to prevent anything happening that is all they can do.”

PREVENTION

Monitoring and prevention are the key elements when it comes to working time. Employers have a duty of care to their employees, which must not be forgotten. As Mark Hunt says: “The things that are very difficult to deal with and monitor are the sort of things that lead on from excessive working hours, in circumstances where somebody may well have opted-out but their health suffers as a result. There may be claims and liability that follow. That is much more difficult to monitor and that tends to be the type of case that is most common.”

CHANGES TO THE REGULATION

In January 2006, the regulations were amended so that even if an employee chooses to work outside of their normal working hours it is still covered by the WTR. Previously there was a provision that if any employee determined that they needed to work outside their normal working hours than the time they decided to work over was covered by working hours. The exception for people in management roles and those who can determine their own working hours remains.

The change came into force in April 2006. From 1st October UK offshore workers will be covered by the WTR when it comes to annual leave, meaning they will be entitled to four weeks paid holidays a year. Amicus has been campaigning for the change for a while and the trade union is also trying to secure holiday back pay through an Employment Tribunal case.