Working Time Regulations - Update
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IN THIS ISSUE |
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WELCOME |
If I were to ask the question, “Do you work longer hours than you want to?”, I wonder how many of our readers would say “Yes”?. If I were to follow up with the question, “From a legal point of view, how long should you be working?” how many would know?
Of course, such a poll would not be representative since you wouldn’t be reading this newsletter unless you had an interest in Health and Safety and consequently might be expected to know the answers.
The sad fact is, however, that many UK workers are being exploited when it comes to working hours and, of those who are, most are very unclear about their rights under the law.
However, the situation is set to change as both the European Commission and the UK Government are actively looking at how the Working Time Directive (Regulations in the UK) can be given more teeth.
So how compliant is your organisation to the law as it currently stands and will you be prepared for the changes when they eventually arrive?
David Skews, (CEO)
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WORKING TIME REGULATIONS - UPDATE |
Historical Perspective
It is now 5 years since the European Working Time Directive passed into UK law. Its most prominent aim was to improve working conditions by putting a limit of 48 hours on the average working week, though it also includes other limits on working time. The reason behind the rules is that long hours are believed to be bad for employees and their families, a situation that ultimately works through to the rest of society.
The directive was not intended to take away personal freedom; quite the contrary, individuals can work as long as they wish but working beyond 48 hours has to be a matter of choice and cannot be imposed by employers.
As always, there are exceptions, but the following essential requirements of the Regulations apply to the majority of UK workers:
- An individual employee cannot be required to work more than 48 hours a week (averaged over a period of 17 consecutive weeks)
- Should they wish to do so, workers are allowed to work longer hours but they must do so voluntarily and their willingness to do so must be documented in writing. In other words, a worker cannot lose their job or be subject to less favourable conditions for refusing to sign an opt-out agreement.
- People who work at night cannot be required to work more than an average of 8 hours in a 24 hour period and they must receive free health assessments
- Workers have a right to a minimum of 11 hours rest per day, at least one day off per week and 4 weeks paid leave per year.
- If the working day is more than 6 hours, then it must include an in-work rest break.
Full details, with all the exceptions and variations can be found on the Stationary Office website at: http://www.hmso.gov.uk/si/si1998/19981833.htm.
Enforcement
There are plenty of bodies who are responsible for enforcing these regulations, including:
- Health & Safety Executive HSE)
- Local Authority Environmental Health Officers (EHOs)
- Civil Aviation Authority (CAA)
- Vehicle and Operator Services Agency (VOSA)
In addition, Employment Tribunals enforce the entitlement to rest and leave.
Success and Failure
The problem is that in spite of enforcement arrangements, too many UK employers are ignoring the law and, although estimates vary, there are good indications that the majority of UK workers are unclear about their own rights in respect of working hours.
As a consequence, official figures indicate that, of those people who currently work above the average 48 hours per week, up to two thirds would prefer not to do so. Further research suggests that many who have signed an opt-out document had no choice in the matter and many more have never even been asked to sign an opt-out.
It is in response to this situation that in September 2004, the European Commission adopted a proposal to amend the Working Time Directive. For its own part, in June of this year our government launched a preliminary consultation paper to seek views on how the opt-out provisions are working for UK employees and how they need to be tightened up. The deadline for contributing views was September 2004.
At present, the government is merely gathering information rather than making specific proposals. However, they are looking at a number of very specific areas where they believe improvements are needed. They want to make sure that:
- Workers have a real choice about long hours
- People are protected while they are doing long hours
- People know about their rights
- Businesses effectively monitor their employees’ working hours
Assessing your Position
We await the results of the consultation exercise, but it seems clear that changes will be introduced. Our own government is actively looking for improvements and the European Commission is looking over their shoulder, just in case they are dilatory.
Meanwhile, how does your organisation fare in this area? Are you fully compliant with the law as it currently stands or are you flouting it? Do you have your policies and procedures in place or do you have to admit that you have never seriously considered the matter?
Long working hours, particularly when they are not entered into voluntarily, can have an impact on numerous other aspects of health and safety such as accident rates, stress levels and general standards of health. Consequently, from a legal angle as well as the less tangible benefits such as productivity and sickness absence rates, it is perhaps time to dust off your policies and ensure they are operating well in practice.
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CASE LAW |
This month I want to bring to your attention a case that highlights the need for adequate training, experience and supervision, particularly when the workplace is known to be hazardous.
The case concerns a young man who was killed by a train when he was employed by Balfour Beatty to ‘take possession’ of the track, (meaning to isolate the electrical supply prior to the start of essential maintenance work). The young man was part of a team supplied by McGinley Recruitment Services to Balfour Beatty who was the maintenance contractor for the stretch of railway line.
McGinley was prosecuted because they supplied workers who were less qualified than specified by Balfour Beatty – in this case the young man had never previously worked on a line that was still in use. In addition, they effectively put the young man under the supervision of a colleague who had previously been suspended from doing the job by Balfour Beatty following earlier mistakes.
For their part, Balfour Beatty was prosecuted for failing to check the competence of the workers (including checking their Personal Track Safety (PTS) cards) and failing to adequately supervise the whole gang of workers.
There were other aspects of the case but they all added up to failures in terms of training, experience and supervision. The outcome was that both firms were fined a total in excess of £300,000.
The need for adequate training, experience and supervision applies far beyond the rail industry and is not typically a high cost element of health and safety. In this case, a little more care and training could have saved the young man’s life in addition to the cost of facing a criminal prosecution.
Full details of the case are available on the HSE site at: http://www.hse.gov.uk/press/2004/e04136.htm
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David Skews, (CEO)
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EDP Health Safety & Environment Consultants Ltd
Lakeside, Alexandra Park, Prescot Road, St. Helens, Merseyside, UK
Telephone: +44(0)1744 766000
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