Archive for the 'Working Time Regulations' Category

Working time opt-out at death’s door once more

Published
by
Usefully Employed
on January 5, 2009
in Contracts of Employment, Rambling and Working Time Regulations
. 2 Comments

Personnel Today reports on the alarm expressed by businesses on the European Parliament’s vote to end the maximum working week opt-out. The statistics quoted are telling enough as to how its end would effect the UK workforce - around 1 in 10 employees work more than the 48 hour working week, but for more than 9 in 10 employers.

By way of reminder, a maximum working week of 48 hours applies to European workers, unless they opt-out in writing. Employees cannot be compelled to opt-out, or treated less favourably if they do not. Britain has fiercely defended its citizens’ right to opt-out, a right chosen by very few other countries.

The idea of a maximum working week is anathema to many British workers, even those who would never approach the number of hours. Although other Europeans have long used it as a method of increasing employment levels, here it is seen by many as a socialist policy and even, gulp, a bit French. Simply on a tabloid-sniggering level, the British are no fans of French working practices.

The worse thing is that the perception of a Europe exceeding its remit in a way that dictates against contractual freedom will add fuel to the fire of Euro-scepticism already so rampant in the UK. The rapporteur appointed by the Parliament to report on the measure said that the vote was an opportunity to reconnect with citizens. Indeed: and on these shores it will have the opposite result. This is a great shame, as much of the good work and benefit done by the European institutions goes unnoticed and uncelebrated. Votes such as this, especially given the absolute failure by the EU to recognise that the rejection of the EU constitution was a statement on its failure to engage with its electorate, demonstrate the arrogant blindness of European legislators. Stephen Hughes, social policy spokesman of the European Parliament Socialist Group, speaks volumes as he talks of “our European nations making a great civilization”, “British citizens [being] allowed to enjoy the civilised standards of their fellow Europeans”, compared to “Korean conditions in our factories.” He imposes a social agenda imported from other countries onto a vocally unwilling public who would hold no truck with him at home. He is also disingenuous enough to say all this, then represent the move as health & safety legislation, despite a raft of existing laws which already prevent employers working their employees until they’re so tired injury results.

Freedom of contract is central to the common law system and British working sensibilities. There may be one or two more US readers of this post than usual (thanks to Charon and Blawg Review), and this level of state intervention would (I’m guessing, and would love to be told) be absolutely unacceptable there. To them, and to many British workers, this is the European Union at its worst, and could well be looked at in many years’ time as a first development in a move away from Europe for Britain. The huge promise for peace and prosperity presented by the European institutions could be thrown away on the back of social engineering by policitians who don’t even begin to recognise how utterly disengaged they are from their electorate.

I’m not a Euro-sceptic, and don’t usually use this blog as a soapbox, but some years ago I was talking to an MEP’s agent at a barbecue and asked him what it was an MEP actually does, day-to-day. He responded by taking offence, and the incident has rankled with me ever since. Europe is a Very Good Thing, but won’t last much longer over here if it doesn’t get very smart, very fast, to how it is perceived.

Sorry everyone for the rant, the blog will be back to dry and fusty law reporting soon.

On-call time - Minimum Wage & Working Time Regulations

Published
by
Usefully Employed
on October 5, 2008
in Contracts of Employment, National Minimum Wage and Working Time Regulations
. 0 Comments

This blog is getting a little minimum wage-centric at the moment, but there’s a recent EAT case that re-emphasises what must, by now, be well settled law. Mrs Hughes worked in a care home, which provided her with a flat on-site. In return for a £150 per month rent subsidy, she was required to be on call for any emergencies that occurred, apart from when she was on annual leave. Furthermore, the provision and occupation of the flat were terms of the employment contract.

This type of arrangement is common, and furthermore is very useful. Many care homes are too small to employ sufficient waking night staff to deal with all situations that might arise. Mrs Hughes was called out around twice each month. Relations must have soured however, as she raised a grievance. Her employer’s response was to pay her for the time she was working during the call outs. However, whether due to this grievance or a further deterioration in the relations, they served notice to quit from the flat. This was constructive dismissal, so closely were the flat occupation and employment relationship tied.

She also brought actions claiming that she should be entitled to National Minimum Wage for the on call periods (9pm to 8am), and breach of her Working Time Regulations entitlements to rest breaks every six hours, and daily rest breaks. She won on most points: it has been established since the ECJ cases of SIMAP and Jaeger (all about junior doctors) that if you’re required to be on the premises then it’s working time, even if you’re asleep. The NMW is only payable when you’re awake. For a similar decision with a hotel caretaker required to stay in the hotel on some nights, see this case.

The present case of Hughes v Jones & Anor [2008] UKEAT can be found here, and the law is certainly correctly interpreted, but it’s a shame that employing live-in on call staff is effectively rendered impossible by the WTR.

Imposing annual leave during a notice period

Published
by
Usefully Employed
on September 14, 2008
in Contracts of Employment, Garden Leave and Working Time Regulations
. 0 Comments

Employers frequently do not wish an employee to stay at work during his notice period. Although everyone would accept that there is an obligation to pay notice even if the employee is sat at home, it can irk employers that they have to pay for the notice period, and then pay accrued holiday on top. Contracts of employment thus frequently contain a term that the employer can direct that accrued annual leave is to be taken during notice periods. 

This type of provision is perfectly lawful: the only statutory restriction on when an employer can require an employee to take his holiday is found at reg 15 of the Working Time Regulations 1998, which provides thatthe  notice to take holiday must be at least twice as long as the period of leave in question. These provisions can be excluded by agreement however. This is exactly what happened in Industrial & Commercial Maintenance Ltd v Briffa [2008] UKEAT, and employers are well advised to have this provision in contracts and ensure it is enforced.

Fair Employment Enforcement Board to be established

Published
by
Usefully Employed
on August 5, 2008
in Health & Safety, National Minimum Wage and Working Time Regulations
. 1 Comment

There’s something comforting and old-fashioned about the name.

The establishment of the Board, together with the introduction of a single telephone helpline to report sharp practice by employers, has been announced in this BERR press release.

A summary of the new measures is given:

  1. Establishing a Fair Employment Enforcement Board to drive continued progress towards effective collaboration between enforcement bodies including HMRC, the Employment Agencies Standards Inspectorate (EAS), the Gangmasters Licensing Authority and the Health and Safety Executive.
  2. A single telephone helpline to report abuses;
  3. The launch of a sustained campaign to raise awareness of employment rights issues and to encourage reporting;
  4. New legislation to empower joint agency working and information gathering;
  5. A boost to the Employment Agencies Standards Inspectorate, including a doubling of the number of inspectors and an awareness-raising campaign.

These changes are in addition to the new NMW powers in the forthcoming Employment Bill.

I can’t help but applaud these changes - the variety of enforcement agencies can be confusing to professionals, let alone lay people. Now when will something similar exist for employers?

 

 

Sickness At The Heart of Europe (1)

Published
by
Usefully Employed
on January 27, 2008
in Absence and Working Time Regulations
. 2 Comments

Long term sick absentees from work are a problem. It’s a problem for them, because they’re sat at home generally stressed out about the fact they’ve a job they haven’t seen for months or years - a tie that sometimes can prevent recovery. It’s a problem for the state, which is contributing to their SSP and subsequent incapacity benefit. It’s a problem for the employer, who would rather like to sever the relationship, appoint someone else permanently to the post, and get on with it.

So imagine the ire of employers when it was suggested a couple of years ago that if you were on the sick then you should still get all your holiday pay each year. Example - Bob goes off sick in December 2005. His holiday year is January to December. In November 2006 he rings up his boss and asks to take his WTR-guaranteed 4.8 weeks’ holiday for the last 4.8 weeks of the year and be paid for them. The employer is cross, as if this were correct he’d have to pay Bob holiday pay for a year when he didn’t derive any benefit from employing Bob whatsoever. A similar example would be if Bob gave his notice towards the end of 2006, and asked to be paid in lieu of his untaken holiday.

The Court of Appeal all the way back in 2005 decided this was ridiculous, and in the case of Ainsworth brokered a kind of compromise whereby if anyone didn’t work at all during a holiday year, then they weren’t a worker for the purposes of the Working Time Regs and didn’t accrue an entitlement to annual leave. This remains the domestic position for the moment, and current advice to employers is that even if Bob just comes in for one week of the year then he accrues leave for the rest of the year just as if he’d been at work.

The whole mess (now renamed Stringer) was referred to the ECJ by the House of Lords, and we have now had the opinion of the Advocate General. The AG’s report is not binding, but acts as an expert opinion that is usually followed by the whole court.

In plain English, it provides:

  • You accrue leave when you’re off sick;
  • But you can’t take it when you’re off sick;
  • But you can get a payment in lieu of holiday when you leave.

At least, I think that’s what it means. Daniel Barnett has described the opinion as “arid - verging on incomprehensible” and certainly it makes a typical UK judgment (even a Scottish one) look like the paragon of clarity. I’m no expert on the workings of the European system, but it would appear that all of the parties’ submissions have been translated into German for the AG , and his opinion then written in German and translated into English. Honestly, I’m not being all Daily Mail about this, but surely an AG considering a UK reference ought to have the English fluency to deal with submissions without recourse to translation, and then write his opinion in English. This is simply a practical consideration: the Chinese whispers effect of translation back and forth surely comes with risks of imprecision or missing the point; it certainly makes it a nightmare to read.

UK Holiday Entitlements

Published
by
Usefully Employed
on October 11, 2007
in Working Time Regulations
. 0 Comments

So let’s get started! The new increase in holiday entitlements has caused much confusion. It’s bank holidays that cause the difficulty you see. Calling them bank holidays, public holidays, and worst of all statutory holidays gives people the understandable impression that they’re actually entitled to take them off. Not so. There is actually no legal entitlement to take any public holiday off at all. All the law says is that you’re entitled to so many paid days off in a year. Up until this month, it was 20. That just mean you had to be given 20 paid days off. Employers could count public holidays, Christmas day, the July shutdown, or whatever else into the total. So you get 20 days off plus public holidays? Well, lucky you, because your employer didn’t have to give it to you. In fact, they could have made you work on those days if they wanted.

Understandably, our entitlement to public holidays was a major campaigning point , and thus the government is increasing the minimum entitlement by eight days, to represent the eight public holidays. It’s being phased in, with an increase to 24 days from 1st October this year, and to 28 in 2009.

So you see why people get confused. From the start of this month I’ve received at least two dozen telephone calls like this:

“My employees get 20 days holiday, they reckon they’re entitled to
24 now!”

“Do you give them bank holidays on top of that?”

“Of course – I thought you had to!”

“Don’t worry, you’re fine as you are.”

Of course, I then go on to ask them about staff who work part time or have irregular hours, but if this applies to you, then you can work it out for yourself: http://snipurl.com/1s2cm

Actually, I realise I’m being lazy, so I’ll tell you. If you’re part time, but you work a regular number of days per week (e.g. three) then it’s easy. 24 days per year equals 4.8 weeks, so you just multiply your 3 days by 4.8 to get 14.5 days’ entitlement. You always round up to the nearest half day. In 2009 when it goes up to 28 days, this equals 5.6 weeks. If someone works completely irregular shifts, then it’s best to appoach it as a percentage - for every hour they work, they accrue 10.2% holiday. So, once they’ve worked 100 hours they’re entitled to 10 hours and twenty minutes paid holiday. No-one ever said it was going to be simple. For more examples, see here: http://www.berr.gov.uk/employment/holidays/faq/index.html

So how do we do for holiday in the UK? Employers I speak to vary in their views - I think most reckon the current leave entitlements to be about right. Some of course say it cripples their business. If you (or your employer) starts to fall into this frame of mind, then remember that even when the full 28 days comes in, we’ll still be joint bottom of EU countries. Workers in Germany get a whopping 39 days off each year, and only the Netherlands offer as little as we do. More here: http://news.independent.co.uk/uk/this_britain/article2859082.ece

So if you’re one of the significant minority who’ve enjoyed an increase, then I hope you have a good time wherever you’re going!