Guidance on new hours law rules will not work

Changes to the Working Time law have been rendered ineffective by the Government’s own guidance on them

The Government’s draft guidance on important changes to the Working Time regulations is to make those changes largely ineffective. A change in the rules designed to ease the burden on business will not work. Worse, businesses could accidentally break the law because they do not understand it.

When the Government first introduced the regulations in 1998, it created a new status symbol for Britain’s managers. Never mind the company car, were they defined as a “self managing executive” in the new rules?

The question was important because self-managing executives were not covered by the maximum 48-hour working week, the central plank of the rules. At first, many managers thought they were covered simply because they worked unpaid overtime. But the consensus among lawyers and practitioners was that only the main board was affected.

Some companies thought differently. Brewer Bass decided its pub managers were covered. After all, they ran the pubs without any supervision so chose what hours they worked.

Bass test case

Their union brought a test case to an employment tribunal. Bass settled before the hearing. In practice, the demands of the man- agers’ jobs left them with no choice but to work long hours. As the union put it, how many self-managing executives have to wash glasses and empty ashtrays?

The Government was already under pressure to change the law. Business felt the exemption was too restrictive. Many employees, particularly those in management or in professional services, were high earners and worked long hours through choice and without being paid extra. Should their hours be restricted?

The question revealed the fundamental contradiction at the heart of the regulations. They are supposed to be about health and safety – indeed, the last government lost a legal challenge in the European Court when it tried to say that the EU directive which introduced them was nothing to do with health and safety but was really social legislation.

But how can an employee not be covered by health and safety legislation simply because, in effect, of their status? The directors of construction giants such as Tarmac still have to wear hard hats when they go on site.

In any event, the Government went ahead and changed the law. The new rules said the maximum 48-hour week applied only to time which was measured or pre-determined, either by the worker or the employer.

In theory, this could have a great impact on the large number of employees whose terms of employment say something like office hours are nine to five, “but you will work such additional hours as may be necessary for the performance of your duties”. This type of wording is common for managers in many organisations. At first glance, hours outside the core nine to five would not count towards the 48-hour maximum.

Implied obligations

But the Government’s own guidelines then completely undermined this. The guidelines state that where there is an implied obligation to work extra hours then these hours will count towards the 48-hour maximum. In practice, there will nearly always be such an implication.

For example, the draft guidelines talk about where an employee might suffer detriment if they do not work extra hours. How many managers would ever feel they could refuse to complete a task if it involved them working outside nine to five?

Given the increasing focus on the danger of stress at work, employment tribunals will be sympathetic to managers who say that in practice they had to work long hours. If employers need their staff to work longer than 48 hours, they should make sure they sign individual opt-outs.

Anna Fletcher is an associate, employment team, at Wragge & Co

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