Legal Ease

The European Working Time Directive has hit the news recently due to the maximum number of hours a junior doctor can work being cut from 56 to 48 hours per week - from August 2009.

We have also had a number of calls to the helpline regarding working hours and rest breaks, so thought it would be a good time to remind you of the key factors of the Directive:-

Employers have a general duty to ensure that its workforce works appropriate hours with adequate rest. They must also keep records to show that the Regulations are being complied with and take reasonable steps to ensure that its workforce is complying with the 48-hour maximum week.

Working Time Regulations
The basic rights and protections that the Regulations provide are:
. a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they opt out and the company is in agreement).
· a limit of an average of 8 hours work in 24 which nightworkers can be required to work.
· a right for night workers to receive free health assessments.
· a right to 11 hours rest a day.
· a right to a day off each week.
· a right to a rest break if the working day is longer than 6 hours.
· a right to 5.6 weeks paid leave per year for (employers are not permitted to give pay in lieu of statutory holiday).

Working Time Limits
Workers cannot be forced to work for more than 48 hours a week on average.
Young Workers may not ordinarily work more than 8 hours a day or 40 hours a week, although there are certain permitted exceptions.
Working time includes travelling where it is part of the job, working lunches and job-related training.

Working time does not include travelling between home and work, lunch breaks, evening classes or day-release courses.

The average weekly working time is normally calculated over 17 weeks. This can be longer in certain situations (26 weeks) and it can be extended by agreement (up to 52 weeks)
Workers can agree to work longer than the 48-hour limit. An agreement must be in writing and signed by the worker. This is generally referred to as an opt-out. It can be for a specified period or a indefinite period. There is no opt-out available from the Young Workers limits.
Workers can cancel the opt-out agreement whenever they want, although they must give their employer at least seven days' notice, or longer (up to three months) if this has been agreed.
The working time limits do not apply for jobs where employees can choose freely how long they will work (such as a managing executive) .

Rest Breaks
Young workers - Workers who are under 18 but over 'school leaving age', are classed as a young worker and have different break allowances to adult workers. Young workers can work no more than 8 hours a day and 40 hours a week and young workers who work for more than four and a half hours a day will get a rest break of 30 minutes.

Adult Workers – Workers who are over 18 will normally have the right to a 20 minute rest break if they work for more than six hours at a stretch.

Health Assessments For Night Workers
· As an employer you must offer night workers a free health assessment before they start working nights and on a regular basis while they are working nights. In many cases it will be appropriate to do this once a year, though employers can offer a health assessment more than once a year if they feel it is necessary.

· Workers do not have to take the opportunity to have a health assessment (but it must be offered by the employer).

· A health assessment can be made up of two parts: a questionnaire and a medical examination. The latter is only necessary if the employer has doubts about the worker's fitness for night work.

· Employers should get help from a suitably qualified health professional when devising and assessing the questionnaire. This could be from a doctor or nurse who understands how night working might affect health.

· The health assessment should take into account the type of work that will be done and the restrictions on the worker's working time under the regulations.

· If a worker suffers from problems which are caused or made worse by night work, the employer should transfer him or her to day work if possible.

· New and expectant mothers should be given special consideration.

· Special consideration should also be given to young workers' suitability for night work, taking account of their physique, maturity and experience.

Different working time regulations (The Road Transport (Working Time) Regulations 2005) apply for "mobile workers" (drivers, crew and other travelling staff) and employers should refer to http://www.dft.gov.uk/pgr/freight/road/workingtime/rdtransportworkingtimeguidance for proper guidance.