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44

Working time

This is an excerpt from the TUC book "Hazards at Work: Organising for safe and healthy workplaces", the best-selling guide to health and safety at work. To buy a copy order here (if you are a safety representative on a TUC training course please speak to your tutor about getting a discounted copy)

BASIC FACTS ABOUT WORKING TIME

One of the most essential ingredients in the organisation of work is time: when we work; for how long; and how we balance working time with time outside work. Full-time employees in the UK work the longest hours in Europe. Here’s why:

  • The law that protects against very long hours is weaker in the UK.
  • Most people do not know about the laws we do have, and they are not enforced.
  • More people do the kind of white-collar jobs where overtime is not paid.
  • Many workers work long hours because they are concerned that if they do not they might lose their jobs or not be considered for promotion.
  • We have just got into the habit where employers expect, and staff are prepared to work, very long hours. It is the dreaded ‘long hours culture’.

Long hours are not good for us; they cause stress; they are bad for our health; they wreck relationships; they make caring for children or dependants more difficult; and tired, burnt-out staff are bad for business. Evidence suggests that it is increasingly difficult for people to get their jobs done in their contractual hours and that there is a mismatch between the hours that people would like to work and the jobs available.

It does not mean that we should turn into a nation of clock-watchers. Most people enjoy their jobs and find them fulfilling. But there is a need for give and take at work. Putting in some extra hours when there is an emergency or a sudden increase in orders is one thing. The problem is when it turns to ‘all take’. Long hours become the norm, not the exception, and even longer hours are needed when a real crisis comes along.

Long hours

Regularly working more than 48 hours per week can lead to serious health and safety problems. Long hours can also lead to low productivity, squeeze out education and training, play a big part in excluding women from certain jobs, and put pressure on family life and parenting. Long hours workers have no chance of achieving a decent work/life balance.

Most people in the UK do not work excessive hours. However, some 3.6 million people regularly work more than 48 hours. In the UK, one in seven employees work long hours. This is much higher than the average for the EU’s 15 countries, where the figure is just one in seventeen. For full details see the TUC report The UK’s Long Hours Problem

The TUC report identifies that long hours are a very real hazard. Working excessive hours increases the risk of injury and mortality, heart disease, stress, depression, diabetes mellitus, serious headaches and bowel problems. Excessive hours are likely to lead to increased smoking and drinking and to a poor diet. They also squeeze the time available for family life, which can undermine general wellbeing.

The European Union has set a minimum standard of a 48-hour average weekly working time limit but, uniquely, the UK Government allows everybody to opt-out of the limit. In November 2006, Ministers from European Union (EU) countries were unable to agree an end to the UK opt-out from Europe’s 48-hour working week ceiling. Commenting on this, TUC General Secretary Brendan Barber said:

“This was a missed opportunity to ensure that UK workers are properly protected against the dangers of overwork. The trend in the UK is now towards a slow decline in long hours working. New legal rights would have speeded up that process without hitting economic success. Because the UK Government would not support a compromise today to phase out the UK’s opt-out it is now likely to face legal action on the way that on-call time is treated in UK law.” Brendan Barber continued:

“But the Government is not off the hook. It is clear there is widespread ignorance of working time rights, extensive employer abuse of the opt-out and precious little enforcement of working time rules. The TUC will step up its campaign to bring the UK into line with existing EU law. But the legal approach is not the only way to counter our long hours culture. We will continue to work with Government and employers to shift the culture of UK workplaces and attack the poor productivity and work organisation that long hours working covers up.”

The TUC has analysed unpublished findings from the Government’s Labour Force Survey The analysis showed that removing the opt-out would have had little economic effect:

  • Only 800,000 to 1 million UK employees would have had to make a serious change to their working patterns if the opt-out was ended, but many of these work excessively long hours with at least 130,000 regularly putting in more than 60 hours a week
  • The number of UK employees working more than 48 hours has declined by 17.5 per cent since the 1998 peak of 4.0 million, 700,000 fewer employees are now working long hours.
  • The incidence of long hours workers has declined in every industry, occupation and region, although the pattern of improvement is very uneven, with some sectors doing much better than others.
  • Because of the growth of some jobs and industries there are more long hours workers in some of them, but even here the proportion doing long hours has fallen.
  • Starting from a higher baseline, the decline of long hours working has been much sharper in the private sector.
  • One third of UK employees who work more than 48 hours per week are only working one or two extra hours per week.

On 1 April 2009, MEPs and employment ministers met at a conciliation meeting to consider the ending of the UK Government’s opt-out of the working time directive. Commenting on the lack of agreement to end the UK’s opt-out, TUC General Secretary Brendan Barber said:

“We are disappointed the UK is part of a minority of EU governments that continue to block progress towards ending our damaging long-hours culture.

“The health hazards and lack of productivity caused by excessive working time are well proven. And with people being made redundant or reducing their hours, the business lobby’s insistence that they still need long hours looks even more out of date.

“The working time directive will be under the spotlight again at a third meeting of MEPs and employment ministers later this month. The TUC urges the Government to change its position and put an end to dangerous long hours working.”

New Long Hours Clinic Tool

The TUC’s Long Hours Clinic Tool was devised by Professor Cary Cooper of Lancaster University for Work Your Proper Hours Day 2009. Take the test and benefit from Professor Cooper’s advice. For more about long working hours see www.worksmart.org.uk/workyourproperhoursday/

Unpaid overtime

Unpaid overtime is on the decline, but progress is so slow that it will take until 2030 to end regular unpaid overtime of more than 10 hours every week, according to a TUC analysis of official statistics. The new research was published on 23 February 2007 to mark the TUC’s Work Your Proper Hours Day, the day when people who do unpaid overtime would on average get paid if they did all their unpaid work at the start of the year.

The TUC report says that according to the Government's Labour Force Survey there has been a small decline in the proportion of the workforce doing more than 10 hours a week unpaid overtime over the last five years. Almost 840,000 employees currently do unpaid overtime averaging more than 10 hours a week, which is 3.4 per cent of the workforce – down from 4.1 per cent in 2001. If that rate of progress continues it will take until 2030 before no-one regularly does more than 10 hours extra a week.

TUC general secretary Brendan Barber said: “The best we can say is that our long hours culture is not getting any worse, and there are some real, but pretty glacial, signs of progress over the last five years.” He added: “Employers in long-hours workplaces should be asking hard questions about their culture, how their work is organised and whether they can repay staff through allowing more flexible working arrangements, without waiting for a change in the law to allow everyone to request a better work/life balance.”

Shift work

Shift work and extended working hours involve hazards. As with other health and safety hazards, these should be eliminated or reduced wherever possible. For example, previous Labour Force Survey (LFS) data suggests that an estimated 1.8 million women in Great Britain usually or sometimes do shift work. Of these, an estimated 400,000 are involved in night work (night shift, continental shift and threeshift working). According to the HSE in its research report Shift Work and Breast Cancer: a Critical Review of the Epidemiological Evidence: “Overall, the evidence for an association of breast cancer risk with shift work is appreciable but not definitive. Further epidemiological research is needed to clarify the relationship.” Further details

In March 2009 the Danish government paid compensation to a number of women who had developed breast cancer after long spells of nightshift working. This followed a ruling by the International Agency for Research on Cancer (IARC) that night shifts probably increase the risk of developing cancer.

The IARC is the UN agency that studies and ranks cancer risks. Category One risks are known carcinogens such as asbestos. Nightshift working now sits just one rung below that as a Category 2A risk – a ‘probable cause of cancer’. Dr Vincent Cogliano of the IARC said the agency reached its conclusion after looking at a wide number of studies of both humans and animals. He said there was evidence to support the hypothesis that alterations in sleep patterns could suppress the production of melatonin in the body. “Melatonin has some beneficial effects in preventing some of the steps leading to cancer,” he said. “The level of evidence is really no different than it might be for an industrial chemical.”

As long ago as 1974 the ILO produced a report on hazards to health the resulted from night work, recommending that night work should be restricted to essential services. There is a large body of evidence showing that night shifts are bad for people. Among the symptoms are disturbed sleep, fatigue, cardiovascular disease, gastro-intestinal problems and a greater risk of injury at work. Despite this evidence, the Danish payments are the first compensation payments to women who have developed breast cancer after long spells on the night shift. In the UK trade unions estimate about 20 per cent of the national workforce is involved in night shifts.

LEGAL AND OTHER STANDARDS FOR PREVENTION AND CONTROL

The Working Time Regulations 1998, the Working Time (Amendment) Regulations 2003, and the Road Transport (Working Time) Regulations 2005 address working hours. These Regulations are dealt with in detail below. However, there are a number of more general laws that also apply to working hours. Duties may be found in the chapters of this book listed below:

  • SRSC Regulations 1977 – Chapter 3, with reference to safety representatives’ rights and consultation
  • Health and Safety at Work etc. Act 1974 – Chapter 12, dealing with the general duties of employers and employees under Sections 2–9
  • Management of Health and Safety at Work Regulations 1999 – Chapter 13, with the obligations placed upon employers to make suitable and sufficient assessments of risks to their employees. Risk assessments must take account of the provisions of the Working Time Regulations 1998, the Working Time (Amendment) Regulations 2003, and the Road Transport (Working Time) Regulations 2005 (see below)

 

THE WORKING TIME REGULATIONS 1998 AND THE WORKING TIME (AMENDMENT) REGULATIONS 2003

The Working Time Regulations implement the European Working Time Directive and parts of the Young Workers Directive which relate to the working time of adolescent workers (workers above the minimum school leaving age but below 18). Certain sectors were originally excluded from the scope of the Working Time Regulations 1998. However, most of these sectors have now been included as a result of the Working Time (Amendment) Regulations 2003.

Basic rights and protection in summary The basic rights and protection that the Regulations provide are:

  • a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they want to)
  • a limit of an average of eight hours work in 24 which night workers can be required to work
  • a right for night workers to receive free health assessments
  • a right to 11 hours’ rest a day
  • a right to a day off each week
  • a right to an in-work rest break if the working day is longer than six hours
  • a right to 4 weeks’ paid leave per year

Extension of rights

The Regulations were amended, with effect from 1 August 2003, to extend working time measures in full to all non-mobile workers in road, sea, inland waterways and lake transport, to all workers in the railway and offshore sectors and to all workers in aviation who are not covered by the sectoral Aviation Directive. The Regulations have applied to junior doctors from 1 August 2004.

Mobile workers

Mobile workers in road transport have more limited protection under these Regulations. Those subject to European Drivers hours rules 3820/85 will be entitled to 4 weeks’ paid annual leave and health assessments if a night worker from 1 August 2003. However, the Road Transport (Working Time) Regulations 2005 extend protection to cover weekly working time – see below.

Enforcement

Enforcement is split between different authorities. The limits and health assessments (if a night worker) are enforced by HSE, local authority environmental health departments, the Civil Aviation Authority (CAA) and the Vehicle and Operator Services Agency (VOSA). The entitlements to rest and leave are enforced through employment tribunals.

Where the regulations do not apply

If a person is self-employed, running their own business and free to work for different clients and customers, the Working Time Regulations do not apply to them.

Certain workers are not subject to these regulations because they will be governed by sector-specific provisions. These are:

  • sea transport workers, as covered by the Seafarers’ Directive (1999/63/EC)
  • mobile workers in inland waterways and lake transport
  • workers on board sea-going fishing vessels
  • air transport workers, as covered by the Aviation Directive (2000/79/EC). This Directive affects all mobile workers in commercial air transport (both flight crew and cabin crew) but not workers employed in General Aviation

Mobile workers in road transport are only subject to certain provisions of these Regulations (as covered by the Road Transport Directive (2002/15/EC)). From 1 August 2003 workers subject to the Road Transport Directive have benefited from the entitlement to paid annual leave and the right to health assessments for night workers under the Working Time Regulations. They also gained extra working time rights under the Road Transport (Working Time) Regulations 2005 (see below).

The armed forces, the police and emergency services are outside the scope of the regulations in certain circumstances.

Sectors previously excluded from the regulations

On 1 August 2003 the Working Time Regulations extended cover to the following sectors:

  • workers in air transport, other than those covered by the Aviation Directive
  • all workers in rail transport
  • workers in road transport, other than those subject to the Road Transport Directive
  • non-mobile workers in sea fishing, sea transport, inland waterways and lake transport
  • all workers in other work at sea, such as offshore work in the oil and gas industry

Since 1 August 2004 the regulations have been extended in full to cover doctors in training with the exception of the weekly working time limits and special rules for the reference period, which will be phased in over a further 5-year period (see below).

Working time limits

The general principles regarding working time limits include the following key points:

  • Workers cannot be forced to work for more than 48 hours a week on average.
  • Working time limits for doctors in training are being phased in gradually.
  • Working time includes travelling where it is part of the job, working lunches and job-related training.
  • Working time does not include travelling between home and work, lunch breaks, evening classes or day-release courses.
  • The average weekly working time is normally calculated over 17 weeks. This can be longer in certain situations (26 weeks) and it can be extended by agreement (up to 52 weeks).
  • Workers can agree to work longer than the 48- hour limit. An agreement must be in writing and signed by the worker. This is generally referred to as an opt-out. It can be for a specified period or an indefinite period. There is no opt-out available from the Young Workers’ limits.
  • Workers can cancel the opt-out agreement whenever they want, although they must give their employer at least 7 days notice or longer (up to 3 months) if this has been agreed.
  • The working time limits do not apply if workers can decide how long they work. Young workers may not ordinarily work more than 8 hours a day; 40 hours a week. These hours worked cannot be averaged out and there is no opt-out available. They may work longer hours where this is necessary to either:
  • maintain continuity of service or production, or
  • respond to a surge in demand for a service or product and provided that:
  • there is no adult available to perform the task
  • the training needs of the young worker are not adversely affected

Working at night

The general principles regarding working at night include the following key points:

  • A night worker is someone who normally works at least 3 hours at night.
  • Night time is between 11pm and 6am, although workers and employers may agree to vary this.
  • Night workers should not work more than 8 hours daily on average, including overtime where it is part of a night worker’s normal hours of work.
  • Night working time is calculated over 17 weeks. This can be longer in some situations.
  • A night worker cannot opt out of the night work limit.
  • Young workers should not ordinarily work at night, although there are certain exceptions.
  • Where a night worker’s work involves special hazards or heavy physical or mental strain, there is an absolute limit of 8 hours on the worker’s working time each day – this is not an average.
  • Mobile workers are excluded from the night work limits (but see the Road Transport (Working Time) Regulations below). Instead, they are entitled to ‘adequate rest’. ‘Adequate rest’ means that workers have regular rest periods. These should be sufficiently long and continuous to ensure that workers do not injure themselves, fellow workers or others and that they do not damage their health, either in the short term or in the longer term.

Health assessments for night workers

The general principles relating to health assessments include the following key points:

  • An employer must offer night workers a free health assessment before they start working nights and on a regular basis while they are working nights. In many cases it will be appropriate to do this once a year, though employers can offer a health assessment more than once a year if they feel it is necessary.
  • Workers do not have to take the opportunity to have a health assessment (but it must be offered by the employer).
  • A health assessment can be made up of two parts: a questionnaire and a medical examination.

The latter is necessary only if the employer has doubts about the worker’s fitness for night work.

  • Employers should get help from a suitably qualified health professional when devising and
    assessing the questionnaire. This could be from a doctor or nurse who understands how night working might affect health.
  • The health assessment should take into account the type of work that will be done and the restrictions on the worker’s working time under the Regulations.
  • If a worker suffers from problems which are caused or made worse by night work, the employer should transfer them to day work if possible.
  • New and expectant mothers should be given special consideration.
  • Special consideration should be given to young workers’ suitability for night work, taking account of their physique, maturity and experience.
  • Although excluded from the night work limit in the Working Time Regulations, mobile workers and workers subject to the Road Transport Directive who are ‘night workers’ are entitled to health assessments under the Regulations.

Time off

  • A worker is entitled to a rest period of 11 uninterrupted hours between each working day.
  • A worker is entitled to one whole day off a week. Days off can be averaged over a 2-week period, meaning workers can take 2 days off a fortnight. Days off are taken in addition to paid annual leave.
  • A young worker is entitled to 12 uninterrupted hours in each 24-hour period in which they work. The rest may be interrupted if periods of work are split up over the day or do not last long.
  • A young worker’s entitlement to daily rest can be reduced or excluded in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within 3 weeks.
  • Young workers are entitled to 2 days off each week. This cannot be averaged over a 2-week period, and should normally be 2 consecutive days. If the nature of the job makes it unavoidable, a young worker’s weekly time off can be reduced to 36 hours, subject to them receiving compensatory rest.

Rest breaks

If a worker is required to work for more than 6 hours at a stretch, he or she is entitled to a rest break of 20 minutes. The break should be taken during the 6-hour period and not at the beginning or end of it.

Mobile workers are excluded from the usual restbreak entitlements under the Working Time Regulations. Instead, these workers are entitled to ‘adequate rest’. ‘Adequate rest’ means that workers have regular rest periods. These should be sufficiently long and continuous to ensure that fatigue or other irregular working patterns do not cause workers to injure themselves, fellow workers or others, and that they do not damage their health, either in the short term or in the longer term.

Different rules apply to young workers. If a young worker is required to work for more than four and a half hours at a stretch, they are entitled to a rest break of 30 minutes. If a young worker is working for more than one employer, the time he or she is working for each one should be added together to see if they are entitled to a rest break. A young worker’s entitlement to breaks can be reduced or excluded in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within 3 weeks.

Paid annual leave

The general principles include the following key points:

  • Every worker – whether part-time or full-time – covered by these Regulations is entitled to 4 weeks’ paid annual leave. This includes workers who are subject to the Road Transport Directive.
  • A week’s leave should allow workers to be away from work for a week. It should be the same amount of time as the working week: if a worker does a 5-day week, they are entitled to 20 days’ leave; if they do a 3-day week, the entitlement is 12 days’ leave.
  • The leave entitlement under the regulations is not additional to bank holidays. There is no statutory right to take bank holidays off. Therefore a worker
    who is not otherwise paid in respect of bank holidays may take bank holidays as part of their annual leave entitlement in order to receive payment for these holidays.
  • Workers must give the employer notice that they want to take leave.
  • If a worker’s employment ends, they have a right to be paid for the leave time due and not taken.

Exceptions

There are four classes of exceptions where some of these rules may not apply.

  • In general, employers and workers can agree that the night work limits, rights to rest periods and rest breaks may be varied, with the workers receiving ‘compensatory rest’ (see below). They may also agree to extend the reference period for the working time limits up to 52 weeks. These agreements can be made, for example, by ‘collective agreement’ (between the employer and an independent trade union).
  • The night work limits (including the limit for special hazards), rights to rest periods and rest breaks do not apply where: a worker works far away from where they live (this includes offshore work). Or they constantly have to work in different places making it difficult to work to a set pattern; the work involves security or surveillance to protect property or individuals; the job requires round-the-clock staffing as in hospitals, residential institutions, prisons, media production companies, public utilities and in the case of workers concerned with the carriage of passengers on regular urban transport services or in industries where work cannot be interrupted on technical grounds; there are busy peak periods, such as may apply seasonally in agriculture, retail, tourism and postal services; an emergency occurs or something unusual and unforeseen happens; where the worker works in rail transport and their activities are intermittent; they spend their time working on board trains; or their activities are linked to transport timetables and to ensuring the continuity and regularity of traffic. In these cases (except for the offshore sector) the reference period for the weekly working time limit is extended from 17 to 26 weeks. In addition workers are entitled to ‘compensatory rest’.
  • The working time limits and rest entitlements, apart from those applicable to young workers, do not apply if a worker can decide how long they work. A test, set out in the Regulations, states that a worker falls into this category if “the duration of his working time is not measured or predetermined or can be determined by the worker himself”.
  • Additional hours which the worker chooses to do without being required to by his employer do not count as working time; therefore, this exception is restricted to those that have the capacity to choose how long they work. The key factor for this exception is worker choice without detriment.

Keeping records

Employers need to keep records that show:

  • that the weekly working time and night work limits are complied with
  • workers who have agreed to work more than 48 hours a week
  • health assessments for night workers to include: the name of the night worker, when an assessment was offered (or when they had the assessment if there was one) and the result of any assessment. Records must be kept for two years

For the full Department for Business, Enterprise and Regulatory Reform advice Your Guide to the Working Time Regulations

Enforcement of the working time regulations

Enforcement of the Working Time Regulations is split between different authorities. The limits and health assessments (if a night worker) are enforced by the Health and Safety Executive, local authority environmental health departments, the Civil Aviation Authority (CAA), the Vehicle and Operator Services Agency (VOSA) and Office of Rail Regulation (ORR). The entitlements to rest and leave are enforced through employment tribunals. The Employment Tribunals Service can also help with information about making a claim or about Tribunal procedures. Guidance on the law can be accessed on the DirectGov website.

 

Further advice on the Working Time Regulations

If you need more information about the Regulations, either contact your own trade union, or:

  • for queries about time off, rest breaks, paid annual leave and other general employment information, call the Advisory, Conciliation and Arbitration Service (ACAS) National helpline on 08457 474747 or online at www.acas.org.uk/
  • for information about tribunals, call the Employment Tribunals Service enquiry line on 08457 959 775 or online at www.employmenttribunals.gov.uk
  • for guidance about the weekly and night working time limits and health assessments, call the HSE Infoline on 0845 345 0055 or contact the Environmental Health Department of your local authority or e-mail hseinformationservices@natbrit.com or write to: HSE Infoline, Caerphilly Business Park, Caerphilly, CF83 3GG

Further advice on the Road Transport (Working Time) Regulations 2005 (see box below)

It is beyond the scope of this TUC book to go into intricate detail on these Regulations. Guidance on the law can be accessed on the Department for Transport website If, after reading this guide, you feel that further clarification is needed on certain aspects of the rules, please contact your trade union or telephone VOSA on 0870 6060 440, for assistance.

WHAT CAN SAFETY REPRESENTATIVES DO?

Varying the law by collective agreement

The Working Time Regulations 1998 and the Working Time (Amendment) Regulations 2003 allow considerable flexibility by agreement. In some cases unions will want to take advantage of these flexibilities, while being careful to maintain full health and safety protection for their members. In the right circumstances flexibility may be valued by trade union members. Surveys show that many people want more control over their hours and patterns of work.

Flexibility is certainly valued by employers, and the right to conclude such deals may prove valuable in bargaining towards a better work–life balance.

The list below identifies the rules that can be varied by collective agreement:

  • definition of working time can be extended beyond the definition in the Regulations
  • reference period for 48 hour week can be extended to 52 weeks
  • definition of night time can be extended for night workers
  • definition of night workers can be extended to include more people
  • reference period for night work can be converted from a rolling 17 week average to consecutive blocks of 17 weeks
  • definition of night work involving heavy physical and mental strain can be broadened. In such cases the 8-hour night work limit is an absolute one – not an average
  • night work limits can be loosened by agreement, providing that ‘compensatory rest’ of the same time value is given later on
  • right to 11 hours’ rest per day can be loosened by agreement, providing that ‘compensatory rest’ of the same time value is given later on
  • right to 24 hours’ rest in a 7-day period can be loosened by agreement, providing that ‘compensatory rest’ of the same time value is given later on
  • definition of 7-day period can be varied. Where there is no agreement it is the beginning of each working week
  • timing of rest break of 20 minutes where working day is more than 6 hours
  • date when annual leave year begins
  • period of notice before annual leave can be taken

The 48-hour week

The UK is unique among the EU countries in that it has provisions that allow individual workers to opt out mof the 48-hour average weekly working time limit.

The TUC’s view has always been that there should be no exemptions from health and safety law. The effects of fatigue on performance and concentration are very similar to those of alcohol, so long hours undermine health and safety. Therefore it will continue to campaign to end the opt-out.

In addition, long hours are bad for productivity, as fatigue and loss of concentration lead to workers doing long hours being ineffective. Long hours also squeeze out any chance of achieving a good work–life balance, and discriminate against women workers.

Unions will want to end long hours as soon as possible, and will be aware that the opt-out provisions may end before long. However, in some cases they will probably need to do this in stages in order to avoid loss of earnings. The opt-out is valuable to employers and may be used as a bargaining chip to ensure that there are real negotiations about ending long hours.

A number of deals have been struck that have ended excessive hours without any loss of earnings or with only a slight reduction in earnings. These deals have come about after very broad negotiations about hours and patterns of work organisation, investment and training.

Opt-out forms must specify the period of notice that the employee has to give if they want to opt back in at a later date. Unions may want to ensure that the notice period is as short as possible.

Unions will want to ensure that opt-outs are not simply imposed on workers by default. Some companies have simply sent opt-out forms to new starters with a note asking them to sign and return before they start. Similarly, some workers have been bullied into signing and retaining opt-outs. This is simply illegal and unions will not tolerate it.


‘Adequate rest’

Instead of the standard daily, weekly and in-work rest breaks set out by the Working Time Directive, some rail and road workers are entitled to ‘adequate rest’. Trade unions may want to adopt the common sense position that the time value of the breaks and rest periods set out in the Working Time Directive are intended to be the minimum standard to achieve proper protection for these workers.

In some cases, the Working Time Directive allows for ‘compensatory rest’ – some flexibility about when the breaks and rest periods are taken. This could provide a starting point for negotiation. Unions may also want to try to ensure that adequate rest arrangements are subject to periodic review in order to make sure that they are working and to see whether they can be improved.

Annual leave

It is clear that many employers who are already covered by the Working Time Directive still do not understand the law or are breaking it deliberately. Some 6 million workers have already gained extra holidays from the directive, but official statistics suggest that three-quarters of a million non-union workers are not getting what they are due. Trade unions will also want to negotiate to ensure that public holidays are extra to the four weeks’ annual leave in the new regulations.

Keep up to date with the latest TUC guidance on working time

ROAD TRANSPORT (WORKING TIME) REGULATIONS 2005

The Road Transport (Working Time) Regulations 2005 (SI 2005 No. 639) came into force on 4 April 2005. The Regulations implement European Directive 2002/15/EC, and apply to “mobile workers” (basically drivers, crew and other travelling staff) who operate on vehicles which are subject to Regulation (EC) No 561/2006 (“the
European drivers’ hours rules”) or, in some cases, the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Transport (AETR). Mobile workers are required to
comply with the Regulations as well as the existing European drivers’ hours rules. There is no opt-out from the Regulations.

Mobile workers who only occasionally carry out “in-scope” work are not required to comply with the working time limits under the Regulations (for this to apply, mobile workers must meet the “occasional mobile worker” criteria given in Section 1.3). “Self employed drivers” are exempt from the Regulations until March 2009 – for this exemption to apply, drivers must satisfy criteria given in Section 1.4.

The Regulations introduce limits on weekly working time (excluding breaks and periods of availability) and a limit on the amount of work that can be done within a 24 hour period, for those who operate on night shifts (see Sections 3 and 4 on limits under the Regulations). They also specify how much continuous work can be done before taking a break and introduce daily and weekly rest limits for the crew and travelling staff. Under the Regulations, “working time” for mobile workers must not exceed:

  • an average 48 hour week (normally calculated over a 4 month reference period)
  • 60 hours in any single week
  • 10 hours in any 24 hour period, if working at night

However, use has been made of two derogations contained within European Directive 2002/15/EC, which allow for employers to extend the reference period for the average 48 hour week from 4 to 6 months and allows for night shift employees to exceed the 10 hour working time limit. These provisions are both subject to a collective or workforce agreement being in place (see Section 7.1 – “relevant agreements”).

This guide sets out various means for calculating the average working week (see Section 3.4 – “calculating average weekly working time”).

Employers are required to monitor working time and should do what they can to ensure that the limits are not breached. Records need to be kept for two years. If there is no employer, the Agency, Employment Business or even the worker concerned must monitor their working time. Guidance is also provided on how the tachograph should be used to monitor working time. Further details on record keeping are provided at Section 6.

The Vehicle and Operator Services Agency (VOSA) enforce the Regulations in Great Britain. The Driver and Vehicle Testing Agency (DVTA) enforce the working time regime used in Northern Ireland. For the full DfT Road Transport (Working Time) Guidance go to www.dft.gov.uk/pgr/freight/road/workingtime/ rdtransportworkingtimeguidance

 


FURTHER INFORMATION (in alphabetical order)

Department for Business, Enterprise and Regulatory Reform

Guide to the Working Time Regulations

Department for Transport

Road Transport (Working Time) Guidance

Hazards magazine factsheets (see Section 6.2 for contact details)

  • No. 83: Drop Dead – Overwork
  • No. 81: Give us a Break! Toilet Breaks Campaign
  • No. 78: Get a Life! Work–life Balance
  • No. 69: Not What We Bargained For: ChangingWorkplaces
  • No. 49: Overwork: Fatigue, Long Hours and Pressure
  • No. 34: Working Hours and Health

£1.50 each for union subscribers. £6 for nonsubscribers

Hazards magazine website

Excellent news and resources on the Hazards Worked to Death and Get a Life web resource pages

HSE website

Useful resources on the HSE web page

Labour Research Department (see Section 6 for contact details)

  • Carers in the Workplace: a Guide to Negotiating Flexible Working and Leave £4.90
  • Work–Life Balance £3.30
  • Working Time – a Guide to the Regulations £4.25

London Hazards Centre (see Section 6.2 for contact details)

TUC (see Section 6.1 for contact details)

Trade union information

This page http://www.tuc.org.uk/workplace/working_time.cfm
printed 23 May 2012 at 14:58 hrs by 38.107.179.232