The Pitfalls of the Working Time Directive

More and more issues are being raised by employees regarding the working time regulations and it can be a minefield for employers to navigate and ensure they are compliant in this area. This article provides an overview for employers and details frequently asked questions that I have recently been asked.

What rights do the Working Time Regulations give workers?

The regulations cover numerous issues relating to working time, these include giving workers the right to:

a) a working time limit of 48 hours a week;

 b) a minimum rest break of 20 minutes during any day or shift that exceeds six hours;

c) a minimum rest period of 11 hours between the end of one working day or shift and the beginning of the next (not including the day of the shift changeover) and;

d) a minimum weekly rest period of 24 hours, which can be averaged over two weeks.

e) Entitlement to paid annual leave

Who do the Regulations cover?

The regulations cover ‘workers’ defined as including employees and those working under contracts to perform personally any work or services. Trainees and agency workers are also expressly included and there is no qualifying period of employment.

The 48-hour week

The average working time for each 7 day period should not exceed 48 hours, including overtime. Working time is defined as any time when the worker is working, at the employer’s disposal and carrying out their duties.

However, this is a limit on average working hours, taken over a standard reference period of 17 weeks. In practice, this means that workers can do above 48 hours for quite sustained periods without going over the limit, giving Employers flexibility to meet surges in demand or unforeseen shortages in staff.

If a worker agrees to work beyond the 48 hour limit they must put this in writing. This is known as an opt-out agreement. There is no obligation on a worker to sign an opt-out agreement and they should not suffer any detriment if they choose not to do so.

Frequently Asked Questions

Does sleeping in/on call time count as working time?

The short answer is yes: working time includes time spent on call at a place of work, even when that time was spent sleeping. In SIMAP v Conselliera de Sanidad y Consumo de la Generalidad Valenciana (2000) the CJEU held that time spent by the employees on call and at the employer’s premises would count as working time, but this would not be the case if they were on call at home. The crucial element, therefore, seems to be whether the employee is on call at the workplace or not.

Rest Breaks

The Regulations make provision for daily rest, weekly rest and rest breaks during the working day. Adult workers are entitled to 11 hours rest and young workers to 12 hours rest in each 24 hour period.

In the case of shift workers changing shift, this does not apply, although they should get an ‘equivalent period of compensatory rest.’ There is an exception also for workers whose working day is split (e.g. cleaners).

Adult workers are entitled to a 24-hour rest period in every seven days (although this can be averaged as 48 hours in every 14 days. Young workers should get 24 hours a week. This is in addition to daily rest.

In relation to rest breaks during the working day, it may be surprising to find out that break entitlement only arises when the working day is longer than 6 hours.

Is ‘rolled up holiday pay’ legal?

A major question which arose in the aftermath of the Working Time Regulations was whether it was acceptable for an employer to designate part of the worker’s regular pay as ‘holiday pay’ so as to avoid having to pay the worker when they actually take leave. This ‘rolled-up’ payment was used in particular by employers of casual or temporary workers. After several conflicting decisions in national courts, the CJEU settled the matter in Robinson-Steele v RD Retail Services Ltd 2006, holding that the payment for leave should be clearly separate from normal pay so that an employer could not simply designate part of the usual pay as the holiday pay element.

How many holidays can you carry over long-term sick leave?

The most recent controversy in relation to annual leave has been the question of how annual leave intersects with sick leave. Can a worker on long-term sick leave (which may be unpaid, or paid at a lower rate than normal pay) claim their entitlement to (paid) annual leave and does annual leave continue to accrue while an employee is on sick leave. In the joined cases Stringer v HM Revenue and Customs and Schultz-Hoff v Deutsch Rentenversicherung Bund 2009 the CJEU answered both questions in the affirmative. For good measure, the CJEU also held that where the employment is terminated while the worker is on sick leave, they are still entitled to payment for any annual leave which they have accrued but been unable to take due to their sick leave.

Do you include commission/overtime when you calculate holiday pay?

In British Airways plc v Williams (2012) 2750 pilots successfully challenged the Company’s policy of paying them only basic pay whilst on annual leave. Since then, the EAT has held that where employers require employees to work overtime, these payments are to be taken into account in assessing ‘normal pay’ for the purposes of the Directive-required four weeks’ paid leave, even if the overtime is not guaranteed (Bear Scotland Ltd v Fulton 2015). The Northern Ireland Court of Appeal went further in Patterson v Castlereagh Borough Council 2015 holding that even voluntary overtime could be taken into account if it is part of a worker’s normal pattern of work – a question of fact to be decided by the Employment Tribunal.