Race against time
Bass, the hospitality giant which operates some 3,000 pubs and restaurants and 81 hotels in the UK, backed down last week in a dispute about the working hours of two of its pub managers.
William Marshall, of the Toby Jug in Castle Bromwich, and Christopher Mortlock, of the Custard House in Bordesley Green, both in the West Midlands, were prepared to take their case to the High Court in what was the first test case for the Working Time Directive since its introduction in October 1998 (Caterer, 24 February, page 5).
Bass was to go to court, but decided that it would probably lose if it did and conceded the point to Marshall and Mortlock.
The pair argued that they were unfairly required to work more than 48 hours a week, the time set down in the working time regulations.
Bass backed down after it digested a Government amendment in December which said that pub managers were not exempt from the regulations.
"When the time regulations came in we, along with the rest of the industry, took the view that autonomous managers were exempt. Since the clarification, we felt that our managers did, in fact, fall within the scope," said a Bass spokeswoman.
Before the amendment, Bass argued that managers who run their own budgets, organise staff and control their own hours are "autonomous" managers and therefore exempt from a 48-hour time limit under the directive.
The amendment changed Bass's view, but the law is still far from clear.
Paul Killen, employment law specialist at London legal firm Paisner & Co, said: "I think most people are uncertain what it [the directive] means and, in my view, the amendment is not really very helpful."
The main problem for employers so far has been identifying what an autonomous manager is. In Killen's view, it means only owners of businesses, including managing directors, rather than employees, which tallies with Bass's latest decision.
But then there's the opt-out clause. This allows employees to voluntarily sign away their rights to a 48-hour week and work an unrestricted number of hours, making something of a mockery of the directive.
Although this is a voluntary option, an employee, certainly one on a career ladder, is unlikely to wish to appear troublesome or workshy by refusing to sign a contract that effectively waives his rights over the number of hours he will work.
This concept seems a little hard to grasp for those at the Department of Trade & Industry. "The opt-out clause provides choice and protection. If they don't want to opt out they cannot be forced to work long hours," said a spokeswoman
The expectation from lawyers, however, is that the opt-out clause, peculiar to the UK, will eventually be removed from the directive by Brussels.
Should more managers, like those at Bass, start to exercise their rights, the hospitality industry will be forced to look at alternative ways to stay within the law. The most obvious result is that companies will be obliged to employ more staff to cover the work. And that will cost more money, something that few businesses like to hear.
Revised guidelines on the Working Time Directive will be published next month. To order a copy, call the DTI on 08456 000925.
For general queries on the regulations, call the Health & Safety Executive information line on 0541 545500 .
