ESSA Conference

1. ESSA Conference 15 November 2007 David O’Hara HR Training and Development Solicitor Eversheds LLP

2. Working time

3. Introduction to working time • 48 hour maximum working week • Weekly rest • Daily rest • In-work rest • Annual leave • Night work

4. Introduction to working time • Who is protected ? • What is working time ? • On call time • Enforcement

5. Who is protected? • Worker • Includes employees, agency workers, temporary workers • Excludes the genuinely self employed

6. What is working time? • Any period when • Worker is working, carrying out duties and at the employer’s disposal • Worker receiving relevant training • Agreed in a relevant agreement (collective, workforce or individual agreement) to be working time

7. Working Time • Excludes • Travelling to work • Attending work related social events • Unpaid overtime undertake voluntarily • Rest breaks • Working from home voluntarily

8. Working Time • Includes • Time travelling to incidents when on call • Time on call at employer’s premises • Work related training courses • Working lunches • Work taken home at employer’s request

9. On Call • SIMAP • Jaeger • South Holland • Davies • MacCartney • Anderson

10. On Call SIMAP v Conselleria de Sanidad y Consume de la Genera Lidad Valencia (ECJ 2000) • on call constitutes “working time” where individual required to be in the workplace rather than at home

11. On Call Landeshauptstadt Kiel v Jaeger (ECJ 2003) • “Working time” extended to cover time during which worker allowed to sleep provided worker is required to be on the premises

12. On Call South Holland District Council v Stamp (EAT 2003) • Wardens for sheltered accommodation housing schemes living in accommodation provided by employer were “at home” not “at work” so only “working time” when carrying out duties

13. On Call Davies v London Borough of Harrow (ET 2003) • Resident wardens were engaged in working 24 hours a day Monday to Friday as they were not allowed to leave the site during these hours • Can be “at work” and “at home” at the same time? • Policy changed to allow wardens off site outside core hours provided contactable and within 30 minutes of site

14. On Call MacCartney v Oversley House Management (EAT 2006) • Warden living in tied accommodation to be on site 24 hours a day 4 days a week. Could sleep, receive visitors and undertake recreational activities provided within 3 minutes of site. Held to be “working time” • Precise nature of accommodation supplied to worker not significant – relevant question was whether they were required to be present and remain available at place determined by employer

15. On Call Anderson v Jarvis Hotels (EAT 2006) • No “de minimis” exception • Hotel manager required to sleep at hotel purely in case of emergency that the night porter couldn’t tackle along • Was still “working time” even though risk of call out was insignificant

16. Enforcement Tribunal • Paid holiday, rest breaks, rest periods and compensatory rest • Declaration and just and equitable compensation HSE/Local Authority Environmental Health Department • 48 hour week, night working limits and record keeping • Fine, improvement/prohibition notices

17. 48 hour week • How calculated • Individual opt out • Limited exclusions • Employer to take reasonable steps • Record keeping • Young workers

18. 48 hour week How calculated:- • Rolling 17 week reference period • Relevant agreement fixed 17 weeks • Collective or workforce agreement extends 17 weeks up to 52 weeks • New starter • Special cases

19. 48 hour week How calculated:- • Excluded days • Statutory annual leave • Sick leave • Maternity, paternity, parental and adoption leave • More than one job

20. 48 hour week Individual opt out:- • For fixed or indefinite period • Cancellation – min 7 days max 3 months notice • Agreement in writing • Keep records for 2 years

21. 48 hour week Individual opt out:- • Health and safety obligations remain • Not to be dismissed or subjected to detriment for refusal to opt out • Possible reform

22. Night Work • Who is a night worker? • What is night time? • What are the provisions? • No individual opt out but can modify or exclude by collective or workforce agreement • Employer to keep records to show compliance

23. Night Work Who is a night worker? • Works for at least 3 hours during night time as a normal course or • Specified as night worker by collective or workforce agreement • Case law suggest working 1 in 3 nights will qualify • Special case workers excluded • Young workers excluded from night work

24. Night Work What is night time? • 23:00 to 6:00 • Unless defined in relevant agreement

25. Night Work Provisions • Normal hours should not exceed 8 hour average per 24 hour period • Normal hours = contractual and compulsory or regular overtime • Reference period as before

26. Night Work Provisions • Actual limit of 8 hours per shift if “special hazards or heavy physical or mental strain” • Identified as such in collective or workforce agreement or • Identified by risk assessment

27. Night Work Provisions Free health assessment offered to any worker • At start • At regular intervals Assessment to determine if fit to work at night • If not should, wherever possible, be transferred to other suitable work during the day

28. Rest Periods and Rest Breaks • Daily rest period • Weekly rest period • Rest break • Employer to ensure worker can take rest periods or breaks but not required to force workers to take them BUT Health and Safety obligations!

29. Rest Periods and Rest Breaks Variation to rules • Special case workers • Workers working split shifts • Shift workers who lose rest when changing shifts • Provisions modified by collective or workforce agreement NB compensatory rest

30. Rest Breaks • Uninterrupted 20 minute break • Where daily working time more than 6 hours • Can be varied by collective or workforce agreement • Spent away from workstation • No need for pay

31. Special Case Worker • Where activities are such that home and workplace or different workplaces are distant from each other • Where engaged in security and surveillance activities • Where need for continuity of service e.g. reception, treatment or care provided by hospitals, residential institutions and prisons

32. Special Case Worker • Where foreseeable surge of activity e.g. agriculture, tourism and postal services • Where activities affected by unusual and/or unforeseen and/or exceptional circumstances • Where intermittent activities in rail transport

33. Rest Periods and Rest Breaks Young Workers • Daily rest period of 12 hours • Weekly rest period of 48 hours • Rest breaks of 30 minute sin shift of over 4 ½ hours

34. Rest Periods and Rest Breaks Daily rest period • 11 uninterrupted hours in every 24 hour period

35. Rest Periods and Rest Breaks Weekly rest period • 24 hours uninterrupted rest period in every 7 day period or • One 48 hour uninterrupted rest period in every 14 day period or • two uninterrupted 24 hour rest periods in every 14 day period • 7 or 14 day period starts midnight on Sunday

36. Compensatory Rest • Should equal length of interruption to the period of rest • If on call for 11 hours and during that time is one 30 minute period of work means comp rest = 30 minutes • But what if multiple small disturbances? Jaeger suggestion is only total of the interruptions

37. Compensatory Rest • Employer can use other time to double up as compensatory rest provided worker receives on average 90 hours rest a week • Jaeger says compensatory rest must follow on immediately from the working time it was supposed to counteract through in exceptional circumstances the employer can implement measures providing appropriate protection

38. Annual Leave 4.8 weeks 5.6 weeks • Equivalent to 24, then 28, days for FT worker (paid) • No new right to take public holidays • What if worker’s contract gives statutory plus bank holidays? Increase to 32 and then 36 days? • Transitional arrangements until 2009 • DBERR’s holiday entitlement ready reckoner helpful 1.10.07 1.04.09

39. Health and Safety at Work

40. Health and safety • Health and Safety at Work Act 1974 • safe system of work, working practices & procedures • Management of Health & Safety at Work Regs 1999 • risk assessments • carried out by competent persons • implement measures to keep employees safe from harm • employees to receive proper training & supervision • health surveillance

41. Health and safety • Sanctions for breaching health and safety legislation • HSE guidance:- • useful advice (leaflets & website – www.hse.gov.uk)

42. Personal injury claims • Claimant to prove:- • employer owed duty of care • breach of duty of care • claimant suffered injury • the employer’s breach caused that injury • the injury was reasonably foreseeable

43. Constructive dismissal • What is a constructive dismissal? • a fundamental breach of contract by employer • without reasonable and proper cause • employee leaves as result • no delay/waiver • employee qualifies to claim unfair dismissal • The role of the implied term, for example:- • trust and confidence • safe system and place of work • provide reasonable support