Working time or, in the case of holiday entitlement, non-working time is a part of employment law where employers can slip up. The Working Time Regulations 1998 (‘the WTR’) impose limits on working hours with some special exemptions. A ‘Worker’ is anyone working under a contract – agency workers are expressly covered – except for self-employed individuals who are in a customer/client relationship with a business. As usual, such contracts are liable to scrutiny in the employment tribunals to determine if they genuinely reflect the relationship between the parties. Workers who set their own hours – ‘unmeasured work’ – are also exempt from some of the WTR provisions.
Main rights under WTR
- a maximum average working week of 48 hours (although all workers can be asked to enter in to a written opt-out from this limit – which remains lawful practice despite various attempts at European level to ban or restrict its use);
- an average maximum of eight hours work for ‘night workers’ (who are defined under the WTR as workers who work at least 3 hours between 11pm and 6am in the normal course of their work);
- daily rest of 11 hours in 24 hours;
- weekly rest of 24 hours in each 7 day period;
- a rest break of 20 minutes after working for six hours (note that this is only an entitlement to one rest break, and not to another one if the worker works for a further 6 hours within the same shift); and
- 5.6 weeks’ annual leave (which can include bank holidays).
Those between school leaving age and 18 have extra protection.
Holidays
This is where most problems have arsien:
- do sick workers lose any of their holiday entitlement whilst sick? No;
- can an employer insist that a sick worker takes pre-arranged annual leave if sick at that time? No ;
- can annual leave be carried forward into the next annual leave if the worker is unable to take it in the previous leave year because of sickness or maternity absence? Yes, in some circumstances);
- can holiday pay be ‘rolled up’ within an hourly/daily rate ? No - unless it is a payment in lieu of holiday on termination of employment or in special circumstances for workers with unpredictable hours.
Another difficult area under the WTR is regarding on-call workers. European case law has established that workers are to be treated as ‘working’ for the purposes of the European Working Time Directive (which the Working Time Regulations implement) if they are on-call at the employer’s premises and at the employer’s disposal. This covers workers who live-in, at all times when they are expected to remain on-site, even if they are not being called upon to work and may even be sleeping. Arrangements within the care sector are often such that these workers do not receive sufficient daily and weekly rest and rest breaks because, unsurprisingly, their employers do not view them as ‘working’ when they are sleeping! Each case needs to be considered on its own merits but care needs to be taken. There are also potential issues about national minimum wage (‘NMW’) in this scenario, although a decision late in 2011(South Manchester Abbeyfield v Hopkins) concluded that on call hours when asleep or abed did not count for NMW purposes: only hours when “awake for the purpose of working” count.
Protection from termination of worker contracts
