Legal
Laying down the law Claudia Gerrard
Working hours in the rail industry
In an industry where shift patterns are the norm, Working time legislation has a tremendous impact. But despite this, the law relating to this area is often misunderstood
T
he starting point is the Working time Regulations 1998, which are designed to protect employees from working long hours. As such, they state what an employer is forbidden to do. Firstly, the employer must be aware of the health and safety issues relating to the hours that an employee works. In this sense an employee cannot be required to work more than 48 hours in a week. Secondly, the Regulations state that a
night worker should not work more than eight hours per day. This is combined with a third rule that an employer must look at any special hazards for night workers and also carry out a risk assessment. A fifth requirement is that an employer must allow a night worker to transfer to day work if the employee is suffering from health problems. This is particularly important as it stresses the need for an employer to monitor the health and well- being of its staff. In fact, night workers enjoy additional enhanced protection under the Regulations. Another issue which can be overlooked
is the right for all staff to have rest breaks. This can be difficult in practice, for example, where only one person might be present during a shift. The issue is how to comply with the Regulations when there is no-one to cover that person’s duties. How can rest breaks be given in such circumstances?
Another consideration is to retain
records showing that you are complying with the limits on average working time, night work and provision of health and safety assessments. This is a matter which is often overlooked but is essential to defend against any claims for non- compliance.
As well as rest breaks, an employee must have adequate rest periods. This is generally 11 hours of uninterrupted rest per day or 24 hours of uninterrupted rest per week. Back-to-back shifts would be a clear breach of the Regulations. A further regulation states that employees are entitled to 5.6 weeks paid holiday a year, which most companies are
already aware of. But, not all companies monitor how many hours staff are working and whether they are actually taking their full holiday entitlement. It is also noteworthy that the
Regulations cover all workers, not just employed staff, but potentially agency and freelance personnel as well. One key factor is that staff can opt-out
of the Regulations by signing an agreement waiving their rights in terms of working hours. This is often used by organisations to circumvent a law which could restrict you from providing staff working long shifts.
Ultimately, though, the Regulations
contain a host of provisions which are often complex and difficult to apply in practice. However, it is important to comply. The penalty for non-compliance is a fine and this may be unlimited if a company is convicted on indictment. There is also the possibility of imprisonment for the worst offenders. This puts a clear obligation on organisations to ensure they are aware of their legal obligations. And act accordingly. Claudia Gerrard is a legal consultant at Excello Law. You can call her on 07447 985647 or email her at:
cgerrard@excellolaw.co.uk
Working hours: top ten tips
Make sure contracts of employment adequately cover working hours Ensure that contracts clearly define the working hours required, be it on a shift basis or otherwise. Ensure employees have opted out correctly If an employee opts out, ensure that signed contracts are retained showing this to be the case. Monitor the health of night workers As a special category of employee, regular health assessments should be carried out on night workers to highlight any issues at an early stage. Consider whether staff are suitable to work the contractual hours As part of capability procedures, staff should be monitored to make sure they can satisfactorily carry out the work required. This may mean changing a night worker to daytime hours if considered necessary. Ensure that risk assessments are carried out at regular intervals Risk assessments are essential both in terms of the place of work and the staff’s abilities. Working hours should automatically form part of any risk assessment. Give special consideration to lone workers In terms of both working hours and rest periods, lone workers require additional
monitoring and risk assessments. This may help to discharge the duty of care towards the employee. Monitor the levels of overtime an employee is doing On occasion, an employee’s overtime might mean they are working for excessive periods, possibly without adequate rest periods. This should be noted and, where appropriate, discussed with the employee. Keep detailed records relating to working hours Record keeping is essential with many areas of the law and the same is true of working hours. Have policies and procedures which document the company’s approach to working hours. Communicate with employees As well as discussing any excessive overtime or long working periods, ensure that employees know the company’s policies and are encouraged to discuss any issues or concerns the employee may have. Monitor holiday entitlement Although untaken holidays can often be carried over, an employer should check that an employee is taking sufficient holiday. Inadequate holiday may lead to complaints of stress or other health problems and should be dealt with before it becomes a problem.
March 2013 Page 27
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116