Andrew Rowland Partner, Capsticks Solicitors

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Andrew RowlandPartner, Capsticks Solicitors

• EWTD and the Working Time Regulations 1998

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EWTD and the Working Time Regulations 1998

• Andrew Rowland
• Partner, Capsticks Solicitors

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Outline

• Legislation
• Enforcement
• Working Time
• Future Developments
• New Deal for Junior Doctors

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European Working Time Directive

• Purpose of Directive (93/104/EC)
• to improve health and safety of workers by
  ensuring that they entitled to minimum rest
  periods particularly daily and weekly and
  adequate breaks and by providing for a ceiling of
  48 hours on the average duration of the working
  week (Commission of European Communities v UK
  2006 IRLR 888).
• Excluded junior doctors in training (article
  1(3)).
• To be implemented by UK by 23.11.96
• Direct effect?

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Working Time Regulations 1998

• Purpose of Regulations
• firmly in the minds of anyone dealing with these
  Regulations must be the ultimate course of the
  Regulations which is a measure to protect the
  health and safety of individual workers
  (Gallagher v Alpha Catering Services Ltd 2004
  ICR 1489
• Into force 1.10.98 (two years late!)
• Excluded doctors in training

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WTR Provisions

• Main provisions
• maximum average working hours of 48 per week
  (subject to individual opt out), usually
  calculated over a 17-week period
• minimum 24 consecutive hours weekly rest
• minimum 11 consecutive hours daily rest
• 20-minute rest break where work more than six
  hours
• maximum average working hours of 8 in any 24 for
  nightworkers
• paid annual leave (5.6 weeks as from 1.4.09)

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Relevant WTR Exceptions

• Healthcare workers
• provisions re rest breaks, rest periods and night
  workers do not apply, if compensatory rest is
  given
• in exception cases, if compensatory rest cannot
  be given, must afford such protection as
  necessary to safeguard health and safety
• Shift workers
• provisions re rest breaks do not apply if change
  of shifts or split shift system prevents this

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WTR Amendment Regulations 2003

• Implemented Horizontal Amending Directive
  (2000/34/EC) as from 1.8.04
• Removed exclusion of doctors in training
• 58-hour limit 1.8.04 to 31.7.07
• 56-hour limit 1.8.07 to 31.7.09
• 48-hour limit 1.8.09 onwards
• 26-week reference period

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Enforcement

• Criminal conviction and unlimited fine
• individual and corporate
• HSE/local authority Improvement or
  Prohibition Notice
• Compensation in the Employment Tribunal
• rest breaks, rest periods, annual leave
• detriment
• automatically unfair dismissal
• Unenforceable agreements

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Caselaw - What is Working Time?

• Any period during which the worker is working,
  carrying out his duties and at the employers
  disposal
• Includes time waiting at the employers premises
  on-call (even if sleeping)
• SIMAP v Conselleria de Sanidad y Consume de la
  Generlalidad Valenciana 2000 IRLR 845
• Landeshauptstadt Kiel v Jaeger 2003 IRLR 804
• South Holland District Council v Stamp
  EAT/1097/02
• MacCartney v Oversley 2006 ICR 510
• Does not include rest breaks during the working
  day

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Calculating Working Time

• total working time hours in reference period
• ----------------------------
• number of weeks in reference period
• must extend reference period to include annual
  leave under WTR and other specific forms of leave
  (sick, maternity, paternity, adoption, parental)
• does not include annual leave in excess of basic
  WTR entitlement of four weeks

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Proposals for Reform

• Restricting use of opt out provisions
• New categories of
• on call time time spent at the workplace,
  which will count as working time
• inactive part of on call time on call time
  during which the worker is not required to
  effectively carry out his activity or duties
  (and which counts neither as working time nor a
  rest period)
• Increasing the reference period

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New Deal Requirements

• Contractual provisions - separate to WTR
• Relates to calculation of rate of pay of junior
  doctors
• Junior doctors at bands 1a, 1b, 1c should in
  principle fall within WTR limit of 48 hours
• Junior doctors at bands 2a, 2b or 3 are likely to
  fall outside WTR limit of 48 hours

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Any Questions?