Legal working hours for employment, written by Kate Russell
Submitted by Kate Russell, Author of 101 Tips For Employers
Ever since the introduction of the Working Time Regulations in 1998, the opt-out allowing workers to work in excess of 48 hours a week has been highly controversial.
In June the opt-out was under the European spotlight again. The EU Employment and Social Affairs Council agreed new arrangements for the opt-out and revised definitions of on-call time. The European Parliament still has to approve the changes, but some EU members say they will try to amend the proposed changes as they do not fully support them.
So for now the opt-out of the maximum 48 hour week remains. The main changes will be as follows:
- On-call time will be split into “active” (working time) and “inactive” on-call time (neither working time nor rest time). Active on-call time will be counted as working time. Member states can choose whether or not inactive on-call time counts as working time. However, inactive on-call time may not be counted as rest time.
- Employees who opt-out from the 48-hour limit will be subject to a new upper limit of 60 hours averaged over three months.
- Employees can’t agree to opt-out before the start or during the first four weeks of their employment contract.
- Employees must not be victimised for not signing the opt-out or for opting back in.
- The opt-out must be renewed annually.
- Employers must keep records of the working hours of opted-out workers.
At present, employers can require employees to give three months’ notice of their intention to opt back into the 48-hour limit. The new proposals will mean that workers can opt back in with no notice during the first six months of their contract or three months after their probation period finishes, whichever is the longer. The maximum notice for opting back in will then be two months instead of the current three months.
The new rules will probably take effect in late 2008 or early 2009 and have to be implemented within two years. The revised law is to be removed then.
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i have been given on average between 43 and 45 hour working weeks since our new management has taken over our kitchen, im working in germany under uk law and in a british army camp for pay as you dine (PAYD), my manager is giving me shift plans that exceed my 40 hour contract, and when i tell him that i dont wish to work these shifts, he tells me im a NAAFI employee i have to do it, in september i will be working three shifts til 11.59 pm, then the following day i need to be at work for 06.30 am, and the last twoo weeks of the month i will be working 11 days straight, the final two of which are ten hour split shifts.
i have informed my manager that i do not wish to work shift patterns such as this, and his answer is always the same, tuff. what can i do about this, is it even legal for him to do this?
Dear Simon
Please note that I can’t give specific advice here and you should take specialist guidance if you feel your rights are being breached, but here are some general principles.
Employees and workers are protected by the provisions of the Working Time Regulations 1998. The protection means that you you don’t have to work more than 48 hours a week on average. The average is worked out following a formula which is then averaged over a 17 week rolling period.
The rule about rest days is generally one day off in seven days or two off in 14, but these can be flexible to meet the needs of the organisation.
If your daily working hours exceed six you will be entitled to a minimum of 20 minutes break during the day. This may be paid or unpaid.
If your employer has changed following the transfer of a service, you may be protected by the TUPE (Transfer of Undertakings Protection of Employment) legislation. This gives you the right to work for your new employer on the same (or no less favourable) terms than the ones on which you transferred to him. It may be that by insisting on increasing your hours the employer is in breach of contract.
Employers do have the right to change aspects of employment contracts but they are always subject to the over-riding requirement of reasonableness.
It is open to you to raise a grievance in the first instance to discuss your concerns.
I hope this helps.