Employment law clinic: Working time

The Challenge: All your sales people have signed 48-hour average working
week opt-outs, which made things a lot easier because you believe that they all
work over the limit. But, you have just received notice from one of them, Tim,
that he is withdrawing his consent to opt-out. Jill Kelly, associate in Clarks
Employment Team, looks at the options

Legal issues

Convenient as the opt-out may be, staff who have signed it have the absolute
right to withdraw their consent. The agreement can provide a maximum three
months notice for this withdrawal. Otherwise, the worker need only give seven
days notice.

‘Working time’ is when the worker is at the employer’s disposal and carrying
out his duties, so a lunch break does not count and nor, usually, does the time
spent travelling from home to the office. Time ‘on call’ is working time if the
worker must be at the place of work.

Even if the worker is apparently exceeding the maximum average working
hours, there are provisions in the regulations which may assist businesses.

‘Unmeasured working time’ does not count towards the working time figure.
This could apply to all the time if the worker freely decides when and how long
he works. Alternatively, it could apply to additional hours which the worker
puts in voluntarily, for example, because they want to progress in their career
or earn more commission.

There are provisions allowing an employer to extend the averaging period for
calculating the hours of a worker. Although the standard period is 17 weeks,
this period can be extended to 26 weeks in the following circumstances:

– The worker’s home and place of work or different places of work are
distant from each other

– The business has to keep going continuously, for example, round-the-clock
manufacturing or because it offers a 24-hour service, such as a call centre

– There is a foreseeable surge of activity at a particular time of the year,
ie, the postal service at Christmas

– There is an exceptional, unforeseen occurrence.

The averaging period can be extended to 52 weeks if there are objective or
technical reasons for it, through a collective or workforce agreement.

The employer can also take control of when the averaging reference period
falls. If the employer does nothing, the reference period will simply be a
rolling 17-week period in the course of employment. But the employer can set
the reference period as specific successive periods of 17 weeks in any legally
enforceable agreement such as the contract of employment.

The employer must ensure the worker does not work longer than the permitted
maximum. Contravention is a criminal offence.

HR issues

Why has Tim withdrawn his consent? Ask him whether there is any reason
behind his decision which requires you to take any particular steps. For
example, could he have a ‘disability’, or be stressed?

Be cautious in your treatment of Tim. If you were already planning any kind
of detrimental change to his working conditions, or if you were thinking of
dismissing him for some other reason, either delay or collect the evidence for
the real reason for your actions very carefully. You do not want him claiming
that you victimised or dismissed him because he withdrew his consent.

Businesses do not need to keep records of working hours if the worker has
signed an opt-out. Now that Tim has withdrawn his opt-out agreement, you will
need to start keeping records.

Monitor Tim’s hours carefully. If it looks as if he is going to exceed an
average of 48 hours over a 17-week period, consider whether any of the
possibilities set out above may assist.

One thing that the business must not do is try to cut pay to reflect shorter
hours. This would be unlawful victimisation and could lead to a constructive
dismissal claim. (Although if Tim were paid hourly, it is arguable that his pay
could be cut to reflect the reduced hours worked.)

If none of the derogations mentioned help, there may be a morale issue. You
may feel that the business cannot tolerate one person apparently not pulling
their weight. There are no convenient fixes for this. Ultimately, you will have
two options, either change the team culture or buy Tim off under a termination
compromise agreement.

And remember, the issues in this scenario will be widespread if the maximum
working week opt-out is withdrawn by the EC, after its forthcoming review.


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