An employee may be in breach of the working time regulations due to employment with a third party. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on whether the primary employer is liable for not ensuring rest periods are observed.
The question:
An employee of ours has another job in the evenings working for a care home. The impact of this is this employee comes to work for us the next day feeling the effects of lack of sleep, i.e. they are not getting the 11-hour break in between shifts.
Can anybody cast some light for me on the regulations regarding rest periods and does this count if the employee chooses to work at another job?
We do have some concerns for our employee because the job that they do, does carry a risk to other people if the employee loses concentration. I suspect that the second job also carries risk as it is in a care home.
We believe this employee has taken this second job for financial reasons (which again is their choice and good for them.) How should we approach this employee with our concerns for (a) their health implications and (b) that they do not bring the company into disrepute through a negligent act?
Legal advice:
Esther Smith, partner, Thomas Eggar
Under the working time regulations (WTR), there are limits on the amount of hours an employee should be working and strict rules about rest periods. The fact that the employee in question may be breaching these regulations due to employment with a third party, rather than with your organisation, does not necessarily mean that you do not have a potential liability here.
The WTR, for various political reasons, were introduced as health and safety legislation in the UK, rather than straightforward employment provisions and this affects the implementation of the regulations.
As they are health and safety measures, an employer can be in breach (and therefore at risk of prosecution by the Health and Safety Executive) even if the additional hours are undertaken for a third party, if it has direct knowledge of the additional hours.
Therefore, from the information provided, it sounds certain that the employee in question is acting in breach of the regulation’s limits and rest periods.
In a more general sense, all employers owe their employees a duty of care and if you believe that they are placing themselves, or indeed other employees, at risk through their actions then you have an overriding duty to take positive action to seek to protect against this.
Therefore I think you should be sitting down with this employee and having a frank conversation about your concerns for them and their colleagues, and also outlining your legal obligations to them in terms of ensuring their rest periods are observed. Whilst the employee may be happy to act in breach of the legislation, due to the increased earning capacity this provides them with, you will be exposed to risk and the potential for a claim.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
There are really two separate aspects to your question. The first relates to the working time regulations (WTR); the second deals with the practical implications of your current situation.
Looking at the WTR first, regulation 10, dealing with daily rest, says that a worker is entitled to a rest period of not less that 11 consecutive hours in each 24-hour period during which he works for his employer. As you can see, the employer is obliged to ensure that there is an 11-hour period between the end of one work period and the beginning of another in any 24-hour period. This is an entitlement. There’s no obligation on the worker to actually take advantage of the rest if he or she chooses not to. Thus if your work pattern entitles the worker to the 11 hours’ rest you, as the employer, are not in breach of the WTR.
The second issue is more difficult. It is connected to the WTR issue in that the WTR are ostensibly a health and safety measure. The point of the rest and breaks is to allow employees time to recover so that they don’t jeopardise their health and safety and indeed the safety of others.
So the short answer is that you seem to have a performance issue with this employee. That issue arises because they are tired when coming to work. That may ultimately create more pressing issues such as a genuine safety concern and of course it may impact upon the employee’s health.
Thus my view is that you do need to deal with this as a performance problem. You need to identify the immediate and potential concerns you have, investigate the causes and follow a process to deal with it.
As a minimum, this means consultation with the employee to see if they have a second job and, if so, why. If they don’t, then what other explanation is there for their tiredness. Ultimately, you may have to go through a formal process if the employee’s performance significantly adversely affects himself/herself and/or others (and, indeed, potentially your business).
Martin Brewer can be contacted at: martin.brewer@mills-reeve.com
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