Working Time (L11) Flashcards
How did working time regulation develop?
Importance of limits to working time/notion of ‘unsocial hours’. Protection for people who work at night, should have extra limits.
First ILO Convention in 1919 —– 8-hour day.
UK preference for voluntarism over direct regulation – statutory intervention only for certain categories.
Importance of EU law for the introduction and development of UK Working Time Regulations 1998.
EU Working Time Directive 1993.
Legal basis on health and safety.
The UK’s challenge (UK v EU Council Working Time).
UK claimed the EU had no competence to legislate on this. Because, at the EU level the legal basis for the directive is health and safety. UK claimed working time is not a matter of health and safety.
The CJEU’s response: ‘dignitarian’ understanding of health and safety.
Takes the workers’ dignity into account. Working hours are important to the workers’ dignity.
Who is protected by working time regulation on an EU-basis?
EU Directive - no definition - up to member states but:
Broad personal scope (CJEU).
Autonomous EU law meaning.
A ‘worker’ must be defined in relation to objective criteria to distinguish an employment relationship, meaning: ‘that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’
See Union Syndicale Solidaires Isere v Premier Ministre [2010] ECR I-09961, para 28.
How does Reg 2(1) of the Working Time Regulation 1998 define a worker?
‘Worker’ means an individual who has entered into or works under (or, where the employment has ceased, worked under)—
(a) a contract of employment, or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
Exclusions/partial inclusions:
Reg 18(2)a armed forces, police, domestic workers.
What is protected as ‘working time’ under Reg 2?
Regulation 2 provides that, in relation to a worker, ‘working time’ means:
(a) any period during which he is working, at his employer’s disposal and carrying out his activity or duties;
(b) any period during which he is receiving ‘relevant training’; and
(c) any additional period which is to be treated as working time under a relevant agreement.
What is on-call time?
Working time is when a worker is required to be at the place of work.
When a worker is away from the workplace when on-call, and accordingly free to pursue leisure activities, on-call time is not working time.
What does Sindicato de Medicos de Asistencia Publica (SiMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] IRLR 845, ECJ tell us about whether on-call time is working time?
Doctors in training in Spain.
They had to be att the place of work, but they had a room for rest.
Hospital argued this was not working time.
Even though the doctors can rest, they are required to be at a specific place.
This is working time.
What does Ville de Nivelles v Matzak (Case C-518/15) tell us about whether on-call time is working time?
Stand-by time spent at home by a volunteer fireman, which was within eight minutes’ travelling distance of a workplace, was working time.
The court said this is too restrictive. This person cannot be considered free to pursue leisure activities.
This should be considered work time.
What does Truslove v Scottish Ambulance Service [2014] tell us about whether on-call time is working time?
Employer specified the worker’s location during on-call periods.
No need to be confined somewhere, to be ‘at work’.
The employer restricts their freedom.
What is meant by ‘at the employer’s disposal’?
Being at the employer’s disposal can be interpreted widely.
Engaged in activities that arise from the employment relationship.
Are for the benefit of the employer and done with the employer’s knowledge at an approved time and in an approved manner.
Need for a purposive interpretation of the definition in accordance with EU law.
What does Edwards v Encirc Ltd (UKEAT/0367/14) tell us about the meaning of ‘at the employer’s disposal’?
Shop steward + health and safeth rep meeting between day and night shifts.
Is time spent at meeting working time?
Denied 11 hours’ consecutive rest in any period of 24 hours (reg 10(1)). Only 6 hours between meeting and next shift.
Employment tribunal:
Held meeting was not working time. Not at employer’s disposal.
Employment appeal tribunal:
Upheld workers’ appeal that this was too restrictive a definition – meeting was for the employer’s benefit.
Health and safety meeting = helps the business meet its requirements.
Is time travelling to work classed as working time?
Unlikely to be working time as a worker will probably neither be working nor carrying out his duties, but a worker may well be doing both if he is engaged by travel that is required by the job.
Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL (Case C-266/14).
Peripatetic workers with no fixed place of work and considerable travel time, likely to be considered to be engaged in working time.
What is the purpose of classing time as working time?
Finding that some portion of time (a journey, on-call time etc) is ‘working time’ does not give rise to any statutory right to payment.
- Thera East v Valentine (UKEAT/0325/16).
Distinct from consideration for NMW.
WTRs is limited to regulating certain aspects of the organisation of working time.
- Ville de Nivelles v Matzak.
Working hours, rest periods and annual leave.
What are the limits to the Working Time Regulations?
Part II Rights & Obligations.
Reg 4(1):
Maximum working time, including overtime, is 48 hours per week.
Reference period is 17 weeks (Reg 4(3)).
Can be extended by agreement.
26-week period for ‘special case’ activities (e.g. security/surveillance, hospitals, rail.
Working hours on average should not exceed 48 hrs per week.
Reg 5: Opt-out from maximum weekly hours.
Worker must give written consent/ collective agreement.
Cannot be forced or suffer detriment/dismissal for refusing.
What are the Working Time Regulations for night work?
Reg 6(1).
Normal hours of work at night cannot exceed 8 hours per 24 hours in a 17-week reference period.
Reg 6(7).
No employment to work that is dangerous, involves physical or mental strain for more than 8 hours.
Reg 6A.
Young workers should not perform night work.
Reg 7.
Adult workers performing night work must undergo free health assessment.
Transfer to daytime work if suffering health problems
What are the rest entitlements under the Working Time Regulations?
Reg 10(1).
Daily rest of at least 11 consecutive hours in a day.
Reg 11(1).
Weekly rest of 24 hours.
Reg 12(1).
Rest-breaks of at least 20 minutes for those who work more than six hours.
Directive doesn’t require that it’s paid.
But employers must provide it even if not expressly requested by workers.
- Grange v Abellio London Ltd [2018].
Need not be uninterrupted.
- Network Rail Infrastructure Ltd v Crawford [2019].
