The Working Time Regulations 1999 ("the 1999 Regulations") came into force on 17 December 1999 and extend to Great Britain only. They revise the Working Time Regulations 1998 ("the 1998 Regulations") which came into force on 1 October 1998 in two important areas - unmeasured working time and record-keeping requirements. In addition, there has been a recent development under the 1998 Regulations, namely the increase of the statutory minimum paid holiday entitlement.
What are the Working Time Regulations?
The 1998 and 1999 Regulations govern rights and obligations for employees and employers relating to working hours. The 1998 Regulations implemented the first statutory right to paid leave under English law and introduced the concept of the 48 hour average working
week into Great Britain.
How will the new Regulations affect the existing Regulations?
Regulation 3 of the 1999 Regulations amends the existing provisions which govern the 48 hour average maximum weekly working limit and the exclusion of that limit by agreement: it removes the obligation on employers to keep a record of the hours worked by employees who
have entered into an agreement to opt out of the weekly limit.
Regulation 4 of the 1999 Regulations extends the existing "unmeasured working time" exclusion (as defined in the 1998 Regulations) to workers whose time is partly "unmeasured" and partly not.
Changes to record keeping requirements
Workers can voluntarily agree to disapply the weekly working hours limit. Under the 1998 Regulations, where workers chose to do this, employers were still required to maintain records of all the hours they worked.
There is still a general requirement upon employers to ensure that adequate records are kept to show that the various limits set by the Regulations are being complied with; however the record-keeping requirements have been relaxed in relation to workers who have
entered into an agreement to exclude the limit. Under the 1999 Regulations the employer must now simply record the identity of workers who have agreed to waive the limit: there is no longer an obligation to record the number of hours worked.
Employers may however wish to consider continuing their current time recording systems, including recording the hours worked by workers who have signed opt out agreements. The increasing amount of long term sickness absence and claims relating to stress and depression made against employers, either as personal injury claims or under the
Disability Discrimination Act 1995, has raised awareness of the potential liability of employers if working hours and conditions are not sufficiently monitored.
Changes to unmeasured working time
Under the 1998 Regulations, the provisions relating to the 48 hour average weekly working limit, night work limits, daily/weekly rest periods and rest breaks do not apply to a worker whose time is wholly "unmeasured". Unmeasured working time is defined as working time which is not measured or predetermined or can be determined by the worker him/herself. This applies to those workers who have complete control over the hours that they work and whose hours are not dictated or monitored by their employer - e.g. if they can decide whether or not to work on a particular day without the need to notify or obtain permission from their employer.
The 1999 Regulations introduce the concept of partly unmeasured working time. This applies to workers whose core or standard hours are specified by their employer, generally in a written contract of employment, but who may also choose or be required to work additional
hours. For example, this will be the case where a worker's contract provides that:
"Your normal hours of work will be 9.30 am to 5.30 pm Monday to Friday. You may be required to work such longer hours as the requirements of your job dictate and you will make yourself available as and when necessary for the proper performance of your duties."
The hours between 9.30 am and 5.30 am will be measured working time and will therefore be subject to the 48 hour weekly working limit. Hours worked outside those core hours may in some circumstances be counted in calculating whether or not the 48 hour limit has been
reached. A rough guide is whether the worker is required to work over and above those hours.
If the worker is required to work outside his or her core hours by the employer, for example by being required to attend a meeting which starts or continues beyond 5.30 pm, that time is included in calculating the 48 hour weekly limit as it is dictated or
determined by people other than the worker. If the worker decides to work outside his or her core hours without being instructed to do so, whether in the office, travelling or at home, this may be deemed unmeasured working time and therefore be disregarded in
calculating whether or not the 48 hour limit has been reached.
There may however be difficulties in determining when the employer requires a worker to work beyond his or her core hours, for example when the worker stays late to meet a deadline imposed on him, and when this is of the worker's own volition, such as when he stays late to finish something off rather than leave it to the following day.
Increase in minimum paid holiday entitlement
The 1998 Regulations provide that workers who have been employed for 13 weeks or more have an entitlement to a minimum period of paid leave each year. This increased from 3 weeks to 4 weeks' paid leave in any leave year which starts on or after 23 November 1999.
As the majority of businesses have a leave year which runs from 1 January to 31 December, employers will need to ensure that their workers receive a minimum of 4 weeks' paid leave next year. There are also provisions for calculating the entitlement of workers whose
leave year started after 23 November 1998 but before 23 November 1999 (who receive the minimum three weeks plus a proportion of the additional fourth week).
The DTI guidance provides that this leave entitlement may be inclusive of, rather than additional to, public and bank holidays.
How will the Regulations be enforced?
It is the employer's responsibility to ensure that workers receive the protection provided by the Regulations. Failure to comply with the Regulations can have health and safety, criminal and employment consequences.
The withdrawal of or failure to grant the entitlements will entitle a worker to complain to a Tribunal within 3 months of that act or omission. The time limit for bringing claims may be extended where it was not reasonably practicable to comply. If the complaint is
upheld, then the Tribunal will make a declaration to that effect and may make an award of compensation against the employer.
In addition, an employee's dismissal will automatically be regarded as unfair if the reason (or main reason) for the dismissal relates to: the employee's refusal (or proposed refusal) to give up or vary one of the statutory protections under the Regulations; or the
employee's actions as a workforce representative in relation to the provisions of the Regulations. The usual qualifying period of service (1 year) for unfair dismissal claims is not required to bring a dismissal claim relating to working time rights. Now that the
maximum limit for compensatory awards in unfair dismissal claims has been raised to £50,000, there is the possibility of substantial awards against employers who are in breach.
Equally, if no exclusion agreement has been signed and the average weekly working hours exceed 48, an employee may be entitled to refuse to work until the average hours are reduced to or below the 48 hours per week limit.
How will these changes affect employers?
Detailed practical guidance and legal advice will differ from employer to employer depending upon the type of work carried out, the terms of the contracts under which workers are engaged and any existing record keeping or regulatory systems. However, the main effects should be:
- simplification of the time recording procedure for workers who have opted out (subject to the continued need to monitor working hours for other purposes)
- more flexibility in working environments where the employer will not always have control over the number of hours worked - particularly important in professional services and similar fields.
DTI Guidance
The DTI have indicated that there will be further guidance on the 1999 Regulations to supplement the guidance booklet produced in relation to the 1998 Regulations.
What further employment legislation is expected?
The Working Time Regulations are part of a package of protective and regulatory measures resulting from the implementation of European directives. The majority of the remaining provisions have been implemented under the Employment Relations Act 1999 which received
royal assent in the summer of 1999 and which is being implemented in stages. So far the new limit on compensatory awards for unfair dismissal of £50,000 has been introduced along with the "family friendly policies" - parental leave and revisions to maternity law. Other elements are still awaited - such as the provisions which will
implement the statutory recognition of trade unions, which is expected by Easter 2000.
New legislation to come in 2000 will include revisions to the Transfer of Undertakings Regulations and implementation of the Works Councils and Part Timers Directives.
The 1998 and 1999 Regulations are available from the DTI website, Her Majesty's Stationery Office (HMSO) and from The Stationery Office Ltd Bookshops. Current guidance to the Regulations and answers to "Frequently Asked Questions" can be accessed at the DTI website at www.dti.gov.uk/workright.
This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so.
Professional advice appropriate to the specific situation should always be obtained. If you would like further information or specific advice, please contact one of the following partners: Tony Thompson, Willie Manners or Seán Lavin; or any other member of the Employment, Pensions and Benefits Group.