The starting point is the Working time Regulations 1998, which are designed to protect employees from working long hours. As such, they state what an employer is forbidden to do. Firstly, the employer must be aware of the health and safety issues relating to the hours that an employee works. In this sense an employee cannot be required to work more than 48 hours in a week.
Secondly, the Regulations state that a night worker should not work more than eight hours per day. This is combined with a third rule that an employer must look at any special hazards for night workers and also carry out a risk assessment. A fifth requirement is that an employer must allow a night worker to transfer to day work if the employee is suffering from health problems. This is particularly important as it stresses the need for an employer to monitor the health and well-being of its staff. In fact, night workers enjoy additional enhanced protection under the Regulations.
Another issue which can be overlooked is the right for all staff to have rest breaks. This can be difficult in practice, for example, where only one person might be present during a shift. The issue is how to comply with the Regulations when there is no-one to cover that person’s duties. How can rest breaks be given in such circumstances?
Another consideration is to retain records showing that you are complying with the limits on average working time, night work and provision of health and safety assessments. This is a matter which is often overlooked but is essential to defend against any claims for non-compliance.
As well as rest breaks, an employee must have adequate rest periods. This is generally 11 hours of uninterrupted rest per day or 24 hours of uninterrupted rest per week. Back-to-back shifts would be a clear breach of the Regulations.
A further regulation states that employees are entitled to 5.6 weeks paid holiday a year, which most companies are already aware of. But, not all companies monitor how many hours staff are working and whether they are actually taking their full holiday entitlement.
It is also noteworthy that the Regulations cover all workers, not just employed staff, but potentially agency and freelance personnel as well.
One key factor is that staff can opt-out of the Regulations by signing an agreement waiving their rights in terms of working hours. This is often used by organisations to circumvent a law which could restrict you from providing staff working long shifts.
Ultimately, though, the Regulations contain a host of provisions which are often complex and difficult to apply in practice. However, it is important to comply. The penalty for non-compliance is a fine and this may be unlimited if a company is convicted on indictment. There is also the possibility of imprisonment for the worst offenders. This puts a clear obligation on organisations to ensure they are aware of their legal obligations. And act accordingly.
Working hours: top ten tips
Make sure contracts of employment adequately cover working hours
Ensure that contracts clearly define the working hours required, be it on a shift basis or otherwise.
Ensure employees have opted out correctly
If an employee opts out, ensure that signed contracts are retained showing this to be the case.
Monitor the health of night workers
As a special category of employee, regular health assessments should be carried out on night workers to highlight any issues at an early stage.
Consider whether staff are suitable to work the contractual hours
As part of capability procedures, staff should be monitored to make sure they can satisfactorily carry out the work required. This may mean changing a night worker to daytime hours if considered necessary.
Ensure that risk assessments are carried out at regular intervals
Risk assessments are essential both in terms of the place of work and the staff’s abilities. Working hours should automatically form part of any risk assessment.
Give special consideration to lone workers
In terms of both working hours and rest periods, lone workers require additional monitoring and risk assessments. This may help to discharge the duty of care towards the employee.
Monitor the levels of overtime an employee is doing
On occasion, an employee’s overtime might mean they are working for excessive periods, possibly without adequate rest periods. This should be noted and, where appropriate, discussed with the employee.
Keep detailed records relating to working hours
Record keeping is essential with many areas of the law and the same is true of working hours. Have policies and procedures which document the company’s approach to working hours.
Communicate with employees
As well as discussing any excessive overtime or long working periods, ensure that employees know the company’s policies and are encouraged to discuss any issues or concerns the employee may have.
Monitor holiday entitlement
Although untaken holidays can often be carried over, an employer should check that an employee is taking sufficient holiday. Inadequate holiday may lead to complaints of stress or other health problems and should be dealt with before it becomes a problem.
Claudia Gerrard is a legal consultant at Excello Law. You can call her on 07447 985647 or email her at: firstname.lastname@example.org