Law: We can work it out

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The Independent Culture
Next month, new rules will limit

the working week to 48 hours. Staff

will benefit while employers suffer

the headaches. By Linda Tsang

The work-hard and work-long hours brigade has already been targeted with the Fairness at Work White Paper and the Health and Safety Executive trying to extend its remit to cover reducing stress in the workplace. And from next Thursday, 1 October, the Working Time Directive comes into force, which will mean a major upheaval on how working time is organised in the UK.

The directive introduces a maximum 48-hour week limit which has to be strictly monitored by the employer. That has caused one employment lawyer to comment that it may mean reverting to the archaic system of clocking in and clocking out, and that is likely to cause more stress and more problems.

The Working Time Regulations 1998 were issued at the end of July, but only became available towards the end of August, allowing very little time for employers or employees to get to grips with the major changes which will affect their working time and practices. For the first time, national minimum standards will apply, and most workers will become entitled to at least three weeks' paid holiday. They must also be given a minimum of 11 hours' rest each day and one day off each week.

Professional advisers have also been carrying out briefings to clarify what impact the regulations will have. As one leading employment solicitor comments: "There is a rather vague definition of `managing executives or other persons with autonomous decision-taking powers', which has caused some lawyers to scratch their heads with a look of puzzlement and caused other lawyers to rub their hands together with glee as they contemplate future litigation."

The main change is that the regulations apply to workers, not just employees, so that the directives will cover not only those working under contracts of employment but also those working under other forms of contract. Also, they will not necessarily cover the time which is paid for, but the time when the worker is actually working.

Mark Hewland, an employment partner at the City law firm, Simmons & Simmons, says that "everyone, even lawyers, will have to consider who falls under the regulations, and who comes under the special cases. If it is likely that a worker will work in excess of 48 hours, the employer will have to persuade the worker to give genuine consent to opt out of the regulations. You can't force them to opt out by withholding promotion or salary increases, or dismiss them, because if there is any detrimental treatment, the employer can be faced with a claim for unfair dismissal or breach of contract."

Another problem is that there are more exclusions and special cases than applications. The excluded categories are those working in certain industries, such as air transport, rail, road transport, sea transport and sea fishing and other work at sea. The special cases cover security and surveillance workers and the view is that that also covers certain hospital and prison workers, certain people in the media, as well as lecturers. Those who are self-employed are not covered by the regulations.

And according to another employment specialist, Elizabeth Adams at the law firm Beachcroft Stanleys, "doctors in training are excluded - although the European Commission is currently looking at those exclusions. But there are also a number of peculiarities in the case of hospitals that have banks of nurses or those who work part-time. There will be difficulties about working out holiday entitlements."

There is also the problem of what is "on call" - it is a grey area and the view of many employment lawyers is that employers may end up going to court to determine what it covers - for example, if you are out for dinner with friends but waiting for calls, that may not be "working time". Working time is the time when the worker is at the employer's disposal, during which they are working and are carrying out their activity or duties. GPs, who can work for 15 hours a day, may not be covered because they are self-employed, but locums who are employed may be covered.

The major headache for the employers is that they are under an obligation to monitor the workers to make sure that they are not working more than 48 hours.

One of the misconceptions is that, once a worker has opted out, that is the end of having to comply with the regulations, but the "nonsensical" part, according to one lawyer, is that the employer still has to monitor the hours that they are working whether or not they have opted out.

One corporate employer has called it a "nightmare". In Germany, the normal way to do the monitoring is by clocking in and clocking out. Other methods which have been suggested include filling in time sheets, using a turnstile system where the workers are monitored, a security swipecard, or keeping a check on the logging in and logging out on computers. But these raise more questions as to accuracy. And the employer cannot shift the burden of keeping records of working time entirely on to the worker.

The other problem is that people are suspicious of inquiries about their working habits, especially if they have two jobs - they are likely to suspect that the Inland Revenue is somewhere behind the inquiry.

But with less than one week to go, John McMullen, head of employment at the national law firm, Pinsent Curtis, advises that there is no need to panic: "Do not put it on the back burner. If you haven't already got one, get a copy of the DTI Guidance Notes. One of the less complicated (and also most useful) parts of the new rules is that by agreeing a workforce or collective agreement with employee representatives, both sides can set down the limits of working time and rest hours. And that means there is no need to have individual opt-out agreements."

Elizabeth Adams, of Beachcroft Stanleys, adds: "Do an audit of what hours all your people are working - at all levels. Unless you do that, you will not begin to know whether or not you are in breach of the regulations, and then you can decide what you should be doing. The principal concern is the 48-hour week - the Health & Safety Executive is responsible for policing it and both employers and workers should appreciate that - it is not there to cut down on overtime, and there is a certain amount of flexibility. Unlike a lot of legislation, there is the opportunity to opt in and opt out.

Health & Safety Executive: 0845 6000 925; Web site: http:/ workright