Michael Powner, partner and head of the leisure and hospitality group at law firm Charles Russell, takes a fresh look at the working time regulations
You manage a restaurant and need to plan your front- and back-of-house staffing levels for the coming year. Instead of taking on extra staff, you want to encourage greater flexibility from your existing staff, allowing those who want to work extra hours to do so. All your staff have signed opt-out agreements but you have recently heard that the European Union has been debating removing this right.
The working time regulations (WTR) came into force in the UK in 1998. The WTR implemented, in part, the European Working Time Directive, which was introduced principally as a health and safety measure to limit the number of hours employees worked per week, and to ensure, among other matters, that adequate rest breaks and paid holiday were provided.
Under the WTR, workers engaged under a contract of employment, as well as other individuals who work or provide services for an employer, are limited to working no more than 48 hours in each working week averaged over reference periods of 17 weeks.
It is, however, possible to contract out of the 48-hour limit, thus allowing workers to exceed these working hours. The WTR states that the opt-out agreement must be in writing but may relate to a specific period or apply indefinitely. All agreements must be terminable on not less than seven days' notice, although an employer can require up to three months' notice.
In May 2005, the European Parliament voted to remove the key opt-put clause in the Working Time Directive, in a move that could have radically changed the traditional working patterns in the UK for good. This move followed fears that the opt-out was being abused and that workers were being forced to work longer than the 48-hour week, without extra pay, for fear of losing their jobs.
The European Parliament crucially approved:
Phasing out the ability to opt out of the maximum working week within three years of the amended directive being adopted;
Allowing the reference period for calculating the average working week to be extended from 17 weeks to one year; and,
Ensuring that workers with more than one job are better protected.
However, it appears that the right of UK workers to opt out from the maximum working week has been preserved for the foreseeable future.
The amendment requires approval by both the European Parliament and the Council of Ministers, and the UK Government, supported by a "blocking minority", stalled voting on the proposal in the Council of Ministers. The issue can only return to the parliament once ministers have voted.
The issue is, therefore, very unlikely to be resolved until later next year, after the completion of the UK's forthcoming presidency of the EU, which ends on 31 December. Therefore, for the moment, employers can plan their staffing needs around the current opt-out system, though in future, the UK's "blocking minority" in the Council of Ministers may not remain secure.
The basics still apply:
The consent of each individual worker to opt out of the maximum working week is required. The opt-out agreement should be signed and dated and stored with the personnel records.
Employers are required to keep records for two years to show that they have complied with the provisions on maximum weekly working time. However, there is no required format in this regard.
To avoid claims and ensure that the opt-out remains valid, it is important that workers who refuse to sign an opt-out are not pressured to sign up.
Beware! Local authorities enforce the WTR in respect of hotels, catering and leisure services. An employer who fails to comply with any of the requirements of the WTR is liable to an unlimited fine upon conviction.
Also, further remedies are available to individual workers who believe that they have been victimised or unfairly dismissed for reasons connected with the many rights and entitlements under the WTR. These include an automatic unfair dismissal finding and, in the case of victimisation, potentially substantial awards of compensation which the tribunal considers "just and equitable".