Tens of thousands of employers could be unwittingly breaching Working Time
regulations – leaving them open to prosecution.
When amendments to the rules came into force in December, employers believed
it meant the 48-hour limit could be disregarded for some employees,
particularly those with a degree of control over their extra hours.
But employment lawyers are now warning that the changes proposed are
effectively reversed by small print in DTI draft guidance issued early this
year.
The result is employers may think staff are exempt from Working Time rules
when they are not, said Wragge & Co associate Anna Fletcher. In fact, she
said, the situation remains unchanged in terms of exemptions.
Draft guidance states that employees cannot be exempted if they are
implicitly required to work extra hours or if refusing harms their prospects.
Fletcher said there is a quick and easy way to identify those affected –
look for staff whose contracts state their contracted hours but include a
clause requiring them to work hours necessary to complete the job.
Unions are already aware of the confusion caused by the draft. Martin
McGrath, of the Managerial and Professional Officers union, said, "We
argued this exact point to the Government in our response to the
consultation."
Richard O’Brien, of the MSF union, said employers who thought the situation
could not lead to tribunals might be in for "a rude awakening".
Organisations successfully prosecuted in the criminal courts by the HSE face
an unlimited fine.
Pub chain Bass recently agreed its bar managers should be covered by the
regulations, having previously argued they were "autonomous decision
makers" and therefore exempt.
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It was not clear this week whether the DTI will change its position in the
final guidance, expected shortly. The confusion is yet another example of
unclear drafting which the joint EFSP-Personnel Today campaign is seeking to
overcome.
By Helen Rowe
