European Union: The Legal, Safety And Health Issues For Workers Under Organisation Of Working Time Act

Last Updated: 19 March 2018
Article by Richard Grogan

INTRODUCTION

When I looked at the flyer for the conference I was immediately impressed with the quality of the speakers and their knowledge of safety law and practice. I then wondered why I was included as one of the speakers. I can only conclude that it is on the basis that I am bringing something slightly different to what might normally be perceived as health and safety.

The reason I say this is that when I speak to employers about health and safety invariably seem to think it is about machinery, how offices and factories are set up, safety procedures and how even office chairs and desks have to be safety compliant and checked. They are of course absolutely right. However, it comes often as a shock when they are asked - what about the Organisation of Working Time Act? The Organisation of Working Time Act is a piece of Health and Safety Legislation which comes from a European Directive.

In the talk today and in the notes I am going to deal with three particular Sections, being Section 11 of the Organisation of Working Time Act dealing with the 11 hour daily rest period, Section 12 dealing with the rest periods employees must receive during the working and Section 13 being the weekly rest period. There are a number of other provisions, for example the entitlement to four weeks Annual Leave which is also a health and safety issue. However, time is limited.

Working trends

I am of an age that I remember times when people referred to jobs as a 9-5 jobs. I remember the days when a mobile phone was the size and weight of a brick and had a battery life which was extremely limited. I remember the Nokia phone as revolutionary phone. I remember phones that could not take email, that you could not access the internet on and you could not take pictures on. I remember the day when people needed to have a home phone number to contact somebody and once an employee left the office it was virtually impossible to contact that employee until they came back the next day or after the weekend.

That has now all changed.

For those in management and even at a most junior level and especially those in service industries and professions the reality is that even the most junior member of staff on day one is provided with a laptop, mobile phone which will have email on it, a tablet so that when they are on public transport or on holidays or over the weekend that have the opportunity of reading up on all the business circulars, brochures and trade magazines. Employees will be encourage to be on LinkedIn, Facebook, Twitter and the full gambit of social media to promote the company or firm. This is branded "Remote Working". In effect, the reality is that we are now creating employees who work 24 hours a day, 7 days a week, 365 days a year or at least are expected to be available 24/7/365.

The issue of employees taking appropriate rest and breaks are something which is being disregarded by many employers and having to be disregarded by employees if they want to climb the corporate ladder.

The arguments put forward by employers, I might call it excuses, are issues such as being responsive to client demands, meeting clients' expectations, providing seamless services, driving the business. We have now created the whole new jargon around excessive working. Someone called it "Flexible Working". At one stage we thought of flexible working as being on flexi time. Now flexible working actually means being available 24/7/365. Later in this lecture note I will set out how this is completely illegal. Breaches of the Organisation of Working Time Act in theory can result in award of up to 2 years' salary. However, there are other issues which employers need to be aware of.

The EU in issuing the Directive in relation to working time, being the Working Time Directive specifically recognised that excessive night work which has a maximum of 40 hours of work in a week, which is where more than 50% of the time is between 12 midnight and 7 am, is particularly detrimental to health. A recent report has indicated that women working at night are more prone to cancer.

Various reports have indicated that excessive working hours and lack of rest can create stress related claims, which is in effect a Personal Injury claim against the employer. It increases the risk of an accident in the workplace. A tired employee is more inclined to make a mistake. Excessive working can result in burn out for employees. Excessive working and lack of rest periods can result in serious detrimental health effects to employees.

Where employees bring claims for breach of the Organisation of Working Time Act various excuses are put forward by employers. They run from the requirements of the business and clients to the failure of the employee to raise the issue. There are very limited circumstances where the requirement of the business can impact on an employee's rights. I will discuss these in the notes. There is no requirement for an employee to raise a grievance. It is the employer's responsibility as this is Health and Safety Legislation to ensure that the employee gets the appropriate rest and break periods.

Before dealing with the issue of the Organisation of Working Time Act, I have been asked to deal with the issue of pregnant women in the workplace from the legal perspective.

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