Amendment to Working Time Regulations 1998

The government has announced a small but important amendment to the Working Time Regulations 1998 (SI 1998/1833). The amendment concerns the difficult and much-misunderstood provisions relating to "unmeasured" working time, and will have significant implications for the application of the Regulations to senior managers and executives.

Background

The Working Time Regulations 1998 implemented the European Working Time Directive (93/104/EC) and introduced - among a range of other entitlements - a limit on weekly working time of 48 hours averaged over a reference period of, usually, 17 weeks.

Regulation 20 contains an important exception, providing that the limits on working time (and most other rights under the Regulations, including many of the rules on night work and the rules on rest breaks and rest periods) do not apply to a worker where "on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself".

Three examples are given of workers for whom this "may be the case", these being:

  • managing executives or others with "autonomous decision-taking powers";

  • family workers; and

  • workers officiating at religious ceremonies.

    Much of the discussion on this issue has focused on these examples - and, in particular, on which workers would count as "managing executives" or workers with "autonomous decision-taking powers". However, what actually matters is whether the duration of the work is "not measured or predetermined or can be determined by the worker himself", along with whether that is "on account of the specific characteristics" of the work being done.

    When the Regulations came into force in October 1998, it was apparent that most managing executives would, in reality, be covered by the limits on working time because their work was not "unmeasured". Even very senior managers are likely to have a contract that provides for a minimum number of hours a week.

    While they may be free to work extra hours, this does not mean that they are able to determine their own working time.

    It was argued by some individuals that the Regulations prevented workers from choosing to do additional work out of a sense of professionalism or enjoyment, and these arguments prompted the government to introduce the Working Time Regulations 1999 (SI 1999/3372), which inserted a new paragraph into reg. 20.

    This provides that, if a worker chooses, "without being required to do so", to do additional work that is "not measured or predetermined", or can be "determined by the worker", that additional work will not count for the purposes of the limits on average weekly working time.

    The intended effect of this provision was to remove the possibility that employees choosing to take additional work home at the weekend, or stay late in the evenings, could be held to be working in excess of the 48-hour week by virtue of that extra work.

    Limitation challenged

    The problem is that the Working Time Directive does not contain provision for such a restriction on the scope of the working time limits.

    As a result, a challenge was launched by the trade union Amicus, which complained to the European Commission that the amendment was incompatible with the Working Time Directive. In February 2004 the commission launched legal proceedings in the European Court of Justice, and a preliminary hearing of Commission v United Kingdom1took place on 26 January 2006.

    However, two days before the hearing, the Working Time (Amendment) Regulations 2006 (SI 2006/99)2 were laid before parliament. These provide that the amendment made in 1999 regarding voluntary overtime will cease to have effect as of 6 April 2006. Clearly, the government has conceded that the provision could not be justified in terms of the Directive.

    Effect on employers

    The result of the removal of the exemption is that a wide range of employers whose workers may choose to do additional work will be required to "take all reasonable steps" to ensure that the total duration of their working time does not exceed an average of 48 hours a week.

    Many employers will simply ask affected workers to agree in writing that the limit on working time will not apply to them (the opt-out found in reg. 4(1)). If the opt-out is duly signed, this will remove the problem.

    However, should a worker refuse to sign, the employer will need to take care to ensure that he or she is not victimised as a result. Particular care will need to be taken if the individual decides to assert his or her rights under the Regulations, declines to opt out and reduces the amount of additional work that he or she does. If doing less work leads to the worker being given unfavourable appraisals or performance ratings, this could amount to an unlawful detriment under s.45A of the Employment Rights Act 1996.

    Employers should also be aware of Hone v Six Continents Retail3, in which an employee's refusal to opt out of the 48-hour week, in combination with his very long hours, was held by the Court of Appeal to be relevant in deciding that his subsequent stress-related mental health problems were reasonably foreseeable.

    These issues, coupled with the potential amendment to the opt-out currently being debated at European level, mean that over-reliance on the signing of opt-outs could cause problems for employers. The ideal situation is for employers to set workloads and targets based on a realistic assessment of what can be achieved within reasonable hours, and organise the work of professionals in such a way that extended periods of "voluntary" overtime are not required.

    Rest break challenge to continue

    In its legal proceedings the European Commission is also arguing that the UK has failed to implement adequately the provisions of the Directive on rest breaks, as it has not placed a positive duty on employers to require rest breaks to be taken. This aspect of the challenge will presumably continue.

    1C-484/04.

    2www.opsi.gov.uk/si/si2006/20060099.htm.

    3[2006] IRLR 49.