The coalition government has expressed its commitment to “deregulating” employment law.
As part of this approach, the Home Secretary, Theresa May, is specifically targeting European Directives and has pledged the government’s commitment to negotiate UK domestic law out of these obligations.
Her concern is that directives passed down from Europe, which must subsequently be incorporated into domestic legislation, have resulted in some employers feeling over-burdened.
Working time issues are at the forefront of such anxiety due to difficulties in achieving a balance between maintaining sensible working hours and undermining operations.
The issue is about preventing the extremes of the past in which junior doctors worked excessive hourly weeks to the detriment of patients, while finding ways to accommodate the demands of employers to reduce cost overheads if necessary.
Under the Working Time Regulations, the maximum working week is 48 hours (although employees can opt out by choice). Rest breaks also comprise 20 minutes for every six hours of work, holidays are 5.6 weeks per year and daily rest breaks should consist of 11 hours in any given 24-hour period.
But austerity has meant that businesses across sectors of all kinds are now trying to reduce their costs.
Sick leave and holiday entitlement
Prior to government cuts, in the case of care or other types of 24-hour services (such as hostels), there were sufficient funds available in local authority contracts to ensure that Working Time Regulations could, in the main, be followed.
But now employers in these sectors in particular have to look at alternative ways of delivering the same frontline services with less staff. This situation has led to an increase in such practices as ‘on call hours’, sleep-in shifts and ‘skeleton staff’, which means that employees cannot always leave work premises during their rest breaks.
But the situation has also not been made any easier by case law that has recently been handed down from Europe around sick leave and how it interacts with holiday entitlement.
An employee who is on long-term sick leave still accrues the right to paid leave, and can request that it is paid to them even if they have been on sick leave for some considerable months.
Moreover, staff members who become unwell while taking pre-booked annual leave can likewise return to the workplace after their holiday and ask to ‘recoup’ the days that they were ill. This right could also make it possible to carry that holiday over to the next leave year.
But such developments can make it difficult for employers during a time of increased pressure on overheads. The situation may likewise cause them problems if staff are all trying to use their leave up by the year end.
Another issue, however, is that some employees prefer to work certain shift patterns. In the care sector, for instance, the preferred system is often for staff to work a day shift (which may be eight or nine hours in length), undertake a sleepover shift overnight (which would still count as working time), before performing an early shift the next day.
The cost of getting it wrong
But such an approach clearly flouts the daily rest of 11 hours laid down in the Working Time Regulations. Although certain industries and sectors are exempt from giving daily rest periods (such as those who deliver 24-hour care services), other employees must be allowed to take “compensatory rest” as soon as possible.
This means that, while it might be justified for a staff member to undertake a ‘waking shift’ followed by a sleep-in shift, it is unclear whether they should then take a compensatory 11 hour rest break rather than work another shift. Employees are not permitted to ‘opt out’ of daily rest.
The Health and Safety Executive deals with working time issues in relation to enforcing the maximum weekly time limit, night work limit and the required health and safety assessments for night work.
If after undertaking an inspection, it finds a regulatory breach, this first offence would normally be followed by an ‘improvement notice’. If the improvement notice is ignored, fines would result, with the ultimate sanction being indictment through the Magistrates Court.
But potentially more costly and risky for employers is the danger of being taken to an employment tribunal. For example, a failure to allow correct holiday could be pursued as an unlawful deduction of wages claim.
In respect of the 48-hour working week, many employees choose to opt out in order to receive additional pay for overtime and like. Problems can arise if only a few individuals among the wider workforce decide not to do so, however, due to the admin burden involved in undertaking monitoring activity.
A further issue is that employees could choose to ‘use’ the Working Time Regulations for additional protection if there are other unrelated areas of dissatisfaction. In other words, an aggrieved employee might choose to use their employer’s potentially relaxed approach to the issue against them.
Alternative means of self-protection
A staff member who is dismissed for asserting a breach of the Working Time Regulations can present a claim for automatic unfair dismissal and, even those who are not dismissed can still argue that they suffered some other detriment.
Although most of the reported cases in which compensation for detriment was awarded have been based on economic loss, there is nothing in law to prevent employees from recovering compensation for ‘injury to feelings’ in the same way that they can in discrimination cases, no matter how rarely.
But so far, the government’s proposed deregulation of employment rights seems to have focused primarily on unfair dismissal.
The Home Secretary may have pledged to move away from Europe, but the UK government is restricted by the terms of its membership of the European Union, which means that it is not easy just to ‘back out’ of legislation that it doesn’t like.
As a result, if employees find themselves exposed due to a lack of unfair dismissal rights – particularly as the qualifying period has now been extended to two years – a growing number may look to other areas of law to protect themselves such as discrimination and working time legislation.
Possible actions that employers can take to reduce risk:
- Encourage staff to sign 48-hour opt-out arrangements. An audit of HR files is useful to check whether they have been signed, where appropriate. It should be borne in mind that some staff will not want to sign the 48 hour waivers, however, and there is nothing that you can do to force them. But other personnel who work hours that are fixed and easy to monitor will not need to sign them
- Audit contracts of employment to ensure that holiday entitlement is dealt with properly and that the rules on ‘carried over’ holiday are clear
- Because it is employers’ responsibility to monitor hours and ensure compliance with the Working Time Regulations, train line managers appropriately on the pertinent issues and ensure that reliable records are kept
- Devise clear policies and procedures around working hours, overtime, sleep-ins and the like. Where shift systems are used, put checks in place to prevent staff breaches
- Don’t overlook senior employees. Employers still have an obligation to senior executives and, if a dispute arises at this level, the impact on business can be felt more deeply in terms of costs and operational disruption
- Do not turn a ‘blind eye’ to employees’ working excessive hours – no matter how apparently content they may appear to be at the time.
Vanessa James is joint head of the employment law department at SA Law.
