Since the introduction of the Working Time Regulations 1998, the construction industry has battled to review working practices, faced with drafting difficulties and gaps in the regulations and in the original guidance notes published by the DTI. Following amendments to the regulations last Christmas, the government has now produced a new, far shorter guidance document. This clarifies certain issues, but in some areas the guidance still seems to be lacking.
The new duty is only to keep a record of the names of those people who have signed 48-hour opt-out agreements, not the hours they work.
The two-job problem
Employees cannot work more than an average of 48 hours a week, even if they work for more than one employer. If so, both employers should seek to agree an opt-out agreement with the worker. However, if an employer is not told about a second job and has no reason to suspect that one exists, it is unlikely to be found to have failed to comply with the regulations.
Rest for workers
Daily, weekly and in-work rest breaks if an employee works for six consecutive hours are key entitlements. The guidance confirms that:
- The employer’s duty is to make sure that the worker can take the breaks, but not that they do take them.
- The 20-minute rest break in a six-hour day must be taken during the six hours, not at the beginning or end of it.
- There is no duty to pay a worker for a rest break or time off, unless agreed between the employer and the worker.
The night work and weekly/daily rest break regulations are relaxed where a “foreseeable surge of activity” exists. The new guidance describes this as where “there are busy peak periods such as may apply seasonally in agriculture, retail, tourism and postal services”.
Its application is untested in the construction industry. This “foreseeable surge of activity” could include a period where there is a clear need to catch up with work on site following, for example, delays because of bad weather.
This subject has caused great practical difficulties in the industry since the regulations came into force. The guidance attempts some answers:
- A “holiday week” is a “normal week”. This does not in practice assist in dealing with workers who have variable working weeks.
- Holiday rights only arise after employment for 13 calendar weeks, but holiday entitlements do accrue in the first 13 weeks.
- Unless the “holiday year” is specified in a contract, it will be different for each employee, starting on the day each employee began work. This is an administrative nightmare for employers; therefore the holiday year should be agreed in an employment contract.
- Employers can dictate when holiday leave is taken. The guidance gives examples, such as for Christmas shutdown or when a number of workers want time off at the same time.
- Overtime is not used in the calculation of a “week’s work” unless it is guaranteed (required by the contract). Bonuses relating to a week’s work can be included on a quarterly or annual basis, but not general profit-sharing or other bonuses. Shift premium payments are included but not shift overtime.
Where workers do not work for fixed hours and a fixed salary, the regulations make it necessary in some cases to take an average of the last 12 weeks’ work in order to calculate a “week’s pay” for holiday pay purposes. If in the last 12 weeks, there is a week in which no earnings were made, the employer must add in to the calculations the pay for the week before the twelfth week (in other words, starting 13 weeks ago).
Unmeasured working time
The regulations do not apply (except for holidays) if a worker has “unmeasured working time” or is an “autonomous decision maker”. Industry has struggled to identify such workers with certainty.
The government recently changed the regulations to introduce the concept of analysing time that is unmeasured, as opposed to workers who always have unmeasured working time. This changes the analysis from the status of the worker to the status of the time itself. Work that is “not measured or pre-determined or can be determined by the worker” does count.
The key factor for time to fall into the exemption is “worker choice without detriment”, and the exemption will not apply to: working time that is paid hourly; where there are prescribed hours of work; where the worker works under close supervision; any time where a worker is expressly required to work (for example, attendance at meetings); and any time a worker is implicitly required to work (for example, because of the requirement of the job or possible detriment if the worker refuses).
The DTI gave some examples. Although not comprehensive, they should be taken seriously.
- The worker works more than 48 hours only because of additional work that needs to be carried out, but the worker cannot control the volume of work. The employer requires the work to be done. Therefore, it is not “unmeasured” and counts towards the 48-hour week.
- A worker works extra hours because he/she is led to believe that the employer considers it unacceptable to work shorter hours. The extra hours are required by the employer and are not unmeasured. The hours are counted.
- A person in a managerial/professional role can determine the time and effort devoted to tasks. If he/she can determine the volume of work, the extra hours will be unmeasured.
- A worker chooses to work extra hours to meet targets for reasons of personal motivation (for example, commission). The extra hours do not count because the worker is determining the volume of work.
The guidance goes on to say that employers should make it clear to workers which hours are expected to be worked and which are voluntary.
Brian Gegg is a senior associate in the employment law group in the London office of Masons.