Regulation 4(2) provides that an employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in regulation 4(1) is complied with.
It had been assumed by many that the two sections were linked, giving a defence to employers if they took reasonable steps to comply with the 48-hour limit. However, Mr Justice Gage has held that this is not the case. The right not to work more than 48 hours is a mandatory employment law provision and is to be implied into workers' employment contracts. The NACODS workers had the right to refuse to work again until their average hours dropped below 48 a week. That right could be enforced in the High Court. Regulation 4(2) is separate, and deals with health and safety, enforceable by the Health and Safety Executive in the criminal courts.
In considering his judgment, Mr Justice Gage took into account the objective of the Working Time Regulations, which is to provide for the health and safety of employees.
In stating that the two parts of regulation 4 are separate and distinct, Mr Justice Gage has held that the clear and precise terms of the 48-hour week provision are mandatory and not subject to the "reasonable steps" qualification. If no opt-out of regulation 4(1) is obtained, employees have the absolute right, through their employment contracts, not to work longer than 48 hours a week averaged over the referral period (usually 17 weeks, although there are exceptions, and in particular it may have benefited the employer in this case to agree consecutive 17-week periods rather than a rolling 17-week average period). Employers must additionally take reasonable steps to restrict employees' working hours to ensure their health and safety.
- Employees have the right not to work more than 48 hours a week
- Employers have a separate duty to restrict employees’ hours for health and safety reasons
A grey area now lies if employees do opt out. Regulation 4(2) seems to apply only to the limit specified in regulation 4(1). If no limit applies, because of the opt out, this appears to remove the employer's duty to ensure working hours are restricted. However, whether or not an opt out is in force, employers have an obligation to record hours worked by their employees.
The duty on employers under regulation 4(2) is qualified by the requirement to take all reasonable steps. Case law, generally from personal injury claims, has determined that such a duty is one of strict liability. In court, it is up to the employer to show that all reasonable steps have been taken in the particular circumstances. Unfortunately, when prosecutions take place, those circumstances have usually resulted in an accident in which individuals have been injured or even killed.
In future, if a health and safety incident does take place, the HSE will probably look at the working time records to see if working hours could lie at the root. If excessive hours have been worked, this is likely to be used in evidence in the related prosecution, even if a breach of the Working Time Regulations is not cited.
Brian Gegg is a senior associate at Masons specialising in employment law. Co-author Helen Walker is a solicitor at Masons specialising in health and safety.