Employers urged to take a common-sense approach

Employers are being told not to panic after unions and employment lawyers
warned thousands of organisations could be unaware they are breaching Working
Time regulations (Personnel Today, 14 March).

Lawyers and unions say interpretation of Working Time amendments could leave
employers open to criminal prosecutions and employment tribunals. But John
Cridland, director of HR policy at the CBI, is urging members to adopt a
common-sense approach.

The problem stems from an amendment to the regulations introduced last
December. This exempts some employees from a maximum average of 48 hours a

But draft guidance issued by the DTI says staff cannot be exempted if they
are implicitly required to work extra hours or if refusing might harm their

The result, according to employment lawyers Wragge & Co, is that staff
who feel forced to work extra hours could bring a case against employers who
believe they are covered by the exemption.

Cridland said employers must read the legislation carefully and assess
whether staff are putting in the extra hours of their own volition. He said,
"The person who is not working the hours by choice is a risk. It is not a
complex question to ask, ‘Are you happy or are you not happy?’.

"I would say to members that if they are requiring employees to work
long hours then they are in danger of breaching the directive."

He added, "There is no absolute certainty but I think there is a very
simple test: consent. If someone consents you won’t have a problem. If you have
any doubt then don’t apply the derogation."

Richard O’Brien of the MSF union said any employer which consistently
refuses to recognise an employee’s right to an average 48-hour week can expect
a claim for constructive dismissal.

By Helen Rowe

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