LRD Booklets April 2013

Working Time Regulations - Application and enforcement

Introduction

Introduction

This booklet looks in detail at the application and enforcement of the Working Time Regulations (WTR) in the UK. Although it is essentially a matter of health and safety, the regulation of working time has rarely been anything other than controversial. Some employers see it as a burden on business even though the damaging effects of fatigue and long hours are now well understood. Unions are often frustrated at loopholes in the regulations and so called “light touch” enforcement.

From the outset there have been a range of flexibilities or “derogations”, not least the individual opt-out from the weekly working time limit allowing workers to regularly work more than 48 hours. Originally seen as a concession to the UK government, the opt-out has now spread to a majority of EU member states, strengthening trade union convictions that it has to go.

On the other hand, interpretations of the Directive by the European Court of Justice, particularly in relation to on-call time and compensatory rest, have fuelled a desire for change among employers and governments. But all efforts so far to reach agreement — including negotiations throughout 2012 between the ETUC and employers represented by Business Europe — have failed.

At a domestic level, UK employers and unions also find it hard to agree on working time regulation. In a Department for Transport consultation in 2009 on the Domestic Drivers’ Hours Rules, part of the UK “family” of working time regulations, there was a “marked split of views” between industry and unions.

Over recent years there have been a number of positive and less positive developments. At a legislative level unions were pleased to see the sector-specific Road Transport Working Time Directive extended to include self-employed drivers, now confirmed in UK regulations, and there were new regulations covering some cross-border railway workers.

Judicially, there have been important rulings confirming holiday entitlement and carry-over for workers on long-term sick leave, although changes to UK regulations consulted on through the government’s Modern Workplaces consultation have yet to be finalised.

Earlier rulings on on-call work have been translated into working practices and collective agreements, for example in the health service — examples of the NHS approach to working time regulation are detailed in the booklet to illustrate agreed practice.

In construction, UCATT welcomed an industry-level collective agreement outlawing “rolled-up holiday” (see chapter 9). And at a regulatory level the RMT rail union welcomed a more robust approach to management of fatigue by the Office of Rail Regulation.

But there have been difficulties too. Aviation unions including Unite and BALPA opposed New European Flight Time Limitations (FTLs) that threatened to increase working hours (see chapter 6). Consultation over aviation standby arrangements led to an amendment to sector-specific regulations in 2010 but unions were not supportive of the change. The position of workers required to sleep-over, and home helps, is an ongoing concern for UNISON. And there are continuing difficulties securing paid leave for workers falsely classified as self-employed, and the arrangement of paid leave for offshore workers.

The European Working Time Directive (EWTD), on which most UK working time regulations are based, applies common minimum standards to workers’ working time and rest (see box below), except where another Directive applies more specific requirements in particular sectors.

This booklet looks at common issues that arise relating to working time including: what the regulations apply to (working and non-working time); who they apply to; how they limit weekly working time; how they regulate night and shift work (when the risks associated with long hours working are most acute); what they provide for in the way of breaks and rest periods; and annual leave.

The European Working Time Directive

• Limits weekly working time to a 48-hour week on average, including overtime;

• Sets daily and weekly rest periods, normally a minimum period of 11 consecutive hours per 24-hour period and an uninterrupted rest of at least 24 hours each seven-day period;

• A rest break during working time (if the working day is longer than six hours);

• For night-workers, a maximum of eight hours’ night work on average, not to exceed eight hours in any 24-hour period if the work involves special hazards or heavy physical or mental strain; a health assessment; and a right to transfer “wherever possible” to day work if suffering health problems connected to night work/; and

• Paid annual leave, a guarantee of at least four weeks (now more than this in the UK).