The implications of the Working Time Regulations 1998

Petra Cunningham examines the implications of the working time regulations 1998

On 1st October 1998 the EC Working Time Directive was implemented into UK law by the Working Time Regulations 1998 (S.I.1998/1833). The Regulations introduce a statutory framework for the organisation of working hours and give all workers the right to paid annual leave. Whilst the Directive has had little practical significance in most other EU countries, where working time and holidays have been regulated for many years, it has potentially far-reaching consequences for employers in the UK who have traditionally been free to organise working patterns as they see fit. All employers will need to familiarise themselves with the new legislation in order to assess its impact. This is no easy task. The Regulations run to 24 pages of considerable detail, including complex formulae for calculating the various reference periods used to measure working time. However, they are also riddled with ambiguities and uncertainties which can now only be resolved through the courts.

Key provisions

The Regulations provide for:

• An entitlement to three weeks paid annual leave after an initial qualifying period of 13 weeks, rising to four weeks after 23rd November 1999. Workers are entitled to payment in lieu of untaken holiday on the termination of their employment. Employers may, on notice, specify when the workers are required to take their leave. Employers in the construction industry will need to review their holiday arrangements carefully as the current arrangements in the holiday-with-pay scheme are unlikely to be sufficient to comply with the Regulations.
• A limit on working time of 48 hours each week averaged over a 17 week period. However, as may well be the case in the construction industry, where a worker's place of work and place of residence are distant from one another or where the worker's activities require continuity of service, the reference period is extended to 26 weeks. In such cases, the strict rest break requirements and limits on nightwork may also be relaxed (see under derogations). Working time is defined as time when a worker is working, at the employer's disposal, and carrying out activities or duties. Employers will need to consider what constitutes working time for each worker. Time spent "on call" but otherwise free to pursue independent activities will not count as working time, whereas time spent working at home during evenings or weekends may constitute working time. Working time will not necessarily include all time for which a worker is paid. Individual workers can choose to agree to work longer than the 48 hour average weekly limit provided that their agreement satisfies certain formalities:
• a minimum daily rest period of 11 consecutive hours between each working day;
• an uninterrupted rest period of not less than 24 hours in each seven day period. This may be averaged over two weeks;
• a limit on night workers' average normal daily working time of eight hours;
• a requirement to offer health assessments to night workers; and
• a requirement for employers to maintain adequate records on working time in relation to each worker, including those who have agreed to work longer than 48 hours each week.

Scope

The Regulations cover employees and workers over the age of 16. They therefore apply to part-time workers, trainees, agency workers, temporary workers and freelancers. They do not cover the genuinely self-employed, but probably will cover most labour only individual sub-contractors. There is a special rule about who is responsible for agency workers.

Certain sectors are excluded, including air, rail, road and sea transport. However, the location of the work (for example, at a railway station, road, port or airport) will not necessarily mean that the exclusion applies. In particular, the exclusion is unlikely to apply to workers engaged in peripheral activities at these locations, such as construction workers at an airport.

Derogations

The Regulations do provide some relief for employers. The Government has taken full advantage of the various derogations permitted by the EC Directive, which recognise the need to take account of a wide range of working patterns and types of employment.

Some provisions on working time can be adapted by agreement between workers and employers on an individual or a collective basis, provided that certain detailed procedural conditions are satisfied. Three types of agreement are possible:

• collective agreements with a recognisedtrade union;
• workforce agreements with elected employee representatives, in respect of workers who are not covered by a collective agreement; and
• agreements with individual workers.

In some circumstances, including where the worker's place of work and place of residence are distant from one another and where the worker's activities require continuity of production, the strict rest break requirements and limits on nightwork do not apply. However, in such circumstances, unless there are objective reasons preventing it, the employer is still required to allow the worker to take equivalent periods of compensatory rest. Special derogations also apply to shift workers.

Workers whose working time is not measured or predetermined, or can be determined by themselves are not covered by the limits in the Regulations, such as the 48 hour working week limit. The scope of this derogation is uncertain. However, it is likely that it only applies to senior executives who have control over their own working hours.

Enforcement

The working time limits in the Regulations will be enforced by the health and safety enforcing authorities, principally the Health and Safety Executive and Local Authorities. Employers who are tempted to ignore their legal obligations should bear in mind that the usual criminal sanctions for breaches of health and safety legislation will apply.

Individual entitlements can be enforced by workers in Employment Tribunals. Employees (but not

workers) who are dismissed for seeking to exercise their rights may claim compensation for unfair dismissal. Workers and employees who are subjected to any detriment for seeking to exercise their rights may also claim compensation.

The real cost of the Regulations is difficult to assess at present. However, it is already apparent that most employers will have to adapt or formalise their

existing working arrangements in order to comply with the Regulations.