The Working Time Regulations 1998 (WTR) have been widely criticised as inordinately complex and too uncertain and ambiguous for every-day use. Legislative changes have been proposed which optimists hope will clarify the applicability of the WTR to employees in particular sectors and relieve the administrative burden which it places on employers. Pessimists fear that the amendments will merely replace some areas of uncertainty with others.
Measures to extend the protection of the WTR to sectors currently excluded (workers in transport, sea fishing, offshore oil and gas work and junior doctors in training) were agreed in May by the EC Labour and Social Affairs Council. This means that employees in these sectors will in time be protected by existing provisions on working time, rest periods, annual leave and health assessments for night-work and shift work. The implementation period for these changes is expected to be four years.
More fundamental changes were announced by the Government this July in relation to the position of employees whose working time is "unmeasured" and to the obligation to keep records of hours worked by ‘opted-out’ workers. Amending regulations are expected to come into force shortly after Parliament returns from the Summer recess.
By Regulation 20 of the WTR a worker works "unmeasured" working time where on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or pre determined or can be determined by the worker himself. If a worker’s working time is unmeasured for WTR purposes he will be excluded from certain provisions of the WTR, particularly the requirement to work no more than an average of 48 hours in a week. This applies to workers who have control over the hours they work and whose time is not monitored or controlled, such as managing executives or workers with autonomous decision making powers. But the DTI’s Guidance currently suggests that only a very small number of people will fall into this exception - it suggests that "one indicator may be if the worker has discretion over whether to work or not on a given day without needing to consult their employer". The number of people, even at quite senior levels, who can genuinely claim this to be the case must be very small.
The main source of current difficulty for employers is white-collar staff who are not in autonomous positions, e.g. middle management positions or professional roles such as accountants, lawyers and City traders. Generally employees of this level or position do have an element of their working time predetermined, but often also choose to work longer hours of their own volition and not as a result of a specific requirement by the employer. For example, take a manager who is required under his contract of employment to work 40 hours a week. However, if he chooses to work an extra 10 hours each week, perhaps with his eye on the career ladder, he will be working in excess of the statutory 48 hour limit. In this situation the employer’s only choice at present is to ask the worker to opt-out or to limit his hours so as to avoid a breach of the WTR. Either way the administrative burden on the employer is great.
The Government’s intention is that Regulation 20 be amended so that the extra "voluntary" hours which the worker carries out will count as unmeasured. So in the example above the 10 hours extra which the worker has chosen to work will fall within the unmeasured working time derogation and for WTR purposes the worker will still only be regarded as working 40 hours in that week.
The amendment will however only apply to extra hours which the worker does voluntarily. This of course begs the question of what additional hours are worked "voluntarily". As soon as the worker is given so much to do that he is obliged to exceed 48 hours per week in order to complete it (but does not refuse because of a combination of ambition to succeed and fear of the consequences for his career if he does not do the work), can this genuinely said to be voluntary? Is there a point at which peer pressure and internal competition mean that additional hours are voluntary only in the technical sense of the term? It seems likely that any overtime which is paid will not count as voluntary because the employer must monitor it to assess the payment, but the converse of this is that hours over 48 which people work not for money but out of ambition/commitment/fear on an unpaid basis may count as voluntary for these purposes. We can expect considerable litigation on the subject.
The amendment would remove the need for employers to require workers who could potentially fall outside the 48 hour limit with voluntary extra hours to sign an opt-out agreement or to maintain records of actual time worked. Whilst employers may see this as a welcome relief to the growing mountain of administrative paper work, unions are more sceptical. The TUC have contended that the amendment is a watering down of key elements of the 48 hour working week and that it will permit unscrupulous employers to get around the intention of the WTR. Watch this space!
Currently Regulation 4 requires the employer to maintain records detailing which workers have opted out, the terms of such opt-out and the hours actually worked by the opted-out worker, clearly an administrative nightmare for many employers. The Government’s proposal is that the employer will simply be required to keep a record of which workers have signed opt-outs. In the event that the Heath and Safety Executive has concerns, it would remain up to the employer to show that the hours its staff worked did not constitute a failure to provide a safe system of work or otherwise a lack of proper care for them.
Optimistic employers hope that the proposed amendments to the WTR together with the revised version of the DTI Guidance on the Regulations (expected in the Autumn) will assist employers in coming to terms with the Regulations. This remains to be seen - that was the intention the first time too!
For further information please contact Susan Nickson, Trinity Court, 16 John Dalton Street, Manchester M60 8HS, Tel: +44 161 830 5000.
This article was first published in the September 1999 issue of Hammond Suddards' Employment Newsletter.
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.