4th October 2018
One of the most contentious issues in Employment Law is the Working Time Directive. With Brexit looming, there is no certainty what will happen to worker’s rights across the UK after March 2019. Despite this, the UK government continues to emphasize that they firmly believe in the importance of strong labour protections. It remains crucial that companies continue to comply with Working Time Directive. Failing to do so can result in a costly employment tribunal.
Last week we took a closer look at the 48-hour maximum work week. This week we look at the provision to opt-out of the maximum and the steps you need to take to ensure you act in accordance with the Working Time Directive regulations.
Decide if you need an agreement
As part of the Working Time Directive, workers in the UK are limited to a 48 hour working week week. Employees over the age of 18 who aren’t part of the exceptions can choose to opt out and work more than 48 hours a week on average.
In most cases, the main reason employees opt-out is to earn more money by working longer hours.
Remember the 48 hour limit is averaged over 17 weeks. For this reason, occasional long hours shouldn’t be a problem without opting out.
Be aware not everyone is eligible to opt-out
Some categories of workers are unable to work longer than the maximum limit. In most cases, these workers fall into an industry where tiredness is a major risk. These include:
- airline staff;
- a worker on ships or boats;
- a worker in the road transport industry, eg delivery drivers (except for drivers of vehicles under 3.5 tonnes using GB Domestic drivers’ hours rules);
- other staff who travel in and operate vehicles covered by EU rules on drivers’ hours, eg bus conductors;
- a security guard on a vehicle carrying high-value goods.
Don’t pressure your employee
You might want your workers to opt out so they can work longer hours, for example, to cover periods of high demand from your customers. This is perfectly fine. However, it must be voluntary. Don’t pressure your employee into it. If they decline your request, you can’t sack or treat them unfairly for not opting-out at your request.
You also can’t rescind an offer of employment because they don’t want to opt out.
Furthermore, you can’t try to make opting out one sweeping agreement across the workforce; it must be done individually with each employee.
Set the cancellation terms
Employees have the right to cancel the opt-out agreement at any point – even if the opt-out provision is part of their employment contract. For that reason, you should consider keeping it separate from from their contract and letter of offer.
The employee must give a minimum of 7 days’ written notice. A longer notice period may be agreed with the employer, but it can be no longer than 3 months.
Write a comprehensive agreement
The agreement must be in writing, signed by both you and the employee. You can include terms such as duration, hours and pay, any changes to contractual terms, and the notice to terminate.
Here’s a straightforward example:
In accordance with the Working Time Directive 1998, employees of this organisation are not required to work more than 48 hours per week. This is averaged over a 17 week period. This means that an employee might work more than 48 hours in one week, and less in another during a 17 week period – as long as the average is not more than 48 hours.
Employees can opt out of this restriction on weekly hours. By signing this agreement, you indicate that you are prepared to work more than 48 hours in any week. This is not a guarantee that you will be offered work in excess of 48 hours in any week. This is just an indication that you are prepared to opt out of the restriction.
You understand that in the event that you wish the 48 hour limit to apply to your employment in the future you will be required to notify the Company and give 4 week’s notice. Such notice should be given in writing.
If you choose not to sign this agreement you will not suffer any detriment.
Take notes and keep records
When you’re having discussions with your employees about opting-out, keep an open approach to ensure that a worker freely gives his or her consent. Keep notes and records of all discussions on the subject so that you have an audit trail.
You must keep a written record covering the last two years showing which workers have opted out. Store in a secure location with your other HR documents.
Continue to monitor health and safety
Even if a worker has agreed to opt out of the 48-hour week, you still have a duty of care to take reasonable steps to uphold your employee’s health and safety.
Keep an eye out for workers who are working excessively long hours, are showing signs of fatigue, are making uncharacteristic mistakes in their work or exhibiting increased emotional reactions. If demands are excessive, reduce or redistribute the work. If you leave this unchecked, you’ll be exposed to the risk of claims for injury from those who suffer physical or mental health issues as a result of the long hours.
Comply with other Working Time Directive rules
Opted-out workers are still protected by Working Time Directive limits on rest breaks and holiday entitlements, so you must comply. The opt-out does not remove these duties.
For all queries about employment rights, best practice and policies, and resolving workplace conflict, you can contact ACAS through the Acas Helpline Online .
Handy tools to help you stay on the right side of Working Time Directive laws
Of course, there is an easier way. Staff Squared HR software tracks everything you need to stay compliant.
Clarisse works on our Customer Care Team to provide all of our customers to the very best care and guidance when using their HR software.