A WORKING TIME ROUND-UP
PUTTING THE HOURS IN…
The Working Time Regulations 1998 have been around for some time now, but they are still causing ‘ripples’ for employers.
The regulations limited the number of hours a worker can legally work in a week and introduced the right to rest breaks and holidays.
As we all know the UK currently has an opt-out of the 48-hour working week (the right for an individual employee to agree with their employer that the cap on their working hours will not apply to them).
There has been much talk for sometime of this opt-out being removed and we can confirm… they’re still just talking about it and there are no firm signs of the opt-out being removed as yet.
The most recent talks took place in June 2006 and the 25 EU states failed to reach an agreement on its removal with the result that the status quo remains.
The two cases mentioned below highlight the importance of monitoring employee’s hours of work, regardless of the 48-hour opt-out being in place. Award-winning chef Robert Kisby has recently won his case for unfair dismissal from his high-profile job at Le Mont restaurant in Manchester. Mr Kisby was forced to resign from his position due to unbearable pressure caused by working up to 80 hours a week.
The Tribunal commented “The Working Time Directive is founded on the premise that excessive working hours and an absence of proper periods of holiday and work-free periods have an adverse effect on health and safety …. Nothing was done to ensure [Mr Kisby’s] working hours were kept in reasonable bounds.“
On the same theme in a recent case, a licensed house manager received £21,840 damages for psychiatric injury caused by working excessive hours without adequate support. He was working between 89 and 92 hours seven days a week and had refused to sign the opt-out under the regulations, as he was concerned about the hours he was working. The Court found that when deciding whether psychiatric injury is reasonably foreseeable it is proper to take into account that the employer is breaching the maximum average 48-hour working week.
Hone v Six Continents Retail 2006
· If an employer expects an employee to work over 48 hours a week on average – ask them to agree and sign an opt-out.
· Once an opt-out is agreed, ensure a suitable monitoring system is in place to highlight any employee working excessive hours.
· If an employee is consistently working such excessive hours that the employer knew, or should have known, that the employee was likely to damage his health, take appropriate action to reduce the hours and provide support (whether the employee has signed the opt-out or not).
WORKING WHILE ASLEEP!
The EAT has recently decided that a hotel night manager was entitled to be paid for work even when fast asleep.
The manager brought a claim for unpaid wages during a nine month period when he was required to sleep at the hotel overnight. He had to stay at the hotel in case of emergency (for example fire or flood) and in the period was only once required to work when dealing with some unruly guests.
On one other occasion, however, he had left the hotel for half an hour in the middle of the night and received a verbal warning as a result.
The EAT found that time during which the manager was contractually obliged to be in the hotel was plainly working time, and he was entitled to be paid in respect of it.
Anderson v Jarvis Hotels 2006
UK FOUND TO BE IN BREACH OF THE REGULATIONS
There has been much controversy surrounding DTI guidance dealing with rest breaks.
The guidance states that employers are not obliged to ensure workers actually take their breaks.
The ECJ has ruled that by publishing such guidance the UK had failed to meet its obligations under the European Directive which deals with workers’ rights to minimum daily and weekly rest periods.
The ECJ pointed out that although it is technically true that employers are not obliged to force workers to take rest periods, by publicising that fact the DTI guidance was liable to render the rights enshrined in the Directive meaningless.
HOLIDAY PAY AND LONG-TERM SICK LEAVE
As previously reported in Employment Matters Bite Size, the Court of Appeal decided that employees who are on long-term sick leave are not entitled to the four weeks’ paid holiday guaranteed to all workers by the regulations.
The Court ruled that the purpose of the regulations is to ensure the health and safety of workers and provide for “a release of the pressures of daily work”.
An employee who has not been at work will not gain any benefit from taking holiday and, as such, awarding them holiday pay simply results in a windfall.
Technically the case only applies where employees are sick throughout the entire holiday year.
It may be that the outcome would have been different in the case of an employee absent from work due to ill health for only part of a holiday year. If there were such a distinction it would be difficult to know where to draw the line and when holiday pay should be given!
Additionally, it is unclear what, if any, relevance this case has for other forms of absence, such as maternity leave. The case has been appealed and was due to be heard by the House of Lords.
However the Law Lords have remitted the case to the ECJ in the light of a recent German decision on similar lines. We will keep you updated!
HM Revenue and Customs v Stringer