WORKING TIME DIRECTIVE

The cost to business of red tape introduced since 1997 has spiralled by 46% to £30 billion. New laws governing data protection, maternity and paternity leave and other issues have cost businesses billions, according to the Burdens Barometer survey by the British Chambers of Commerce. European laws including the Working Time Regulations, which have cost business more than £10 billion since its launch five years ago, also helped push up costs, the study showed. British firms faced a red tape bill for an extra £9 billion in 2003 alone, the BCC claimed.

BCC Director General David Frost said British business could not compete with a £30 billion millstone around its neck. "Government must simplify the UK's regulatory framework and properly assess both the costs and the benefits of new regulations. Their own rules require them to do this," he said. A spokesman for the Cabinet Office dismissed the BCC's claims, saying UK entrepreneurs faced a better business and regulatory environment than in most member countries of the Organisation for Economic Co-operation and Development.

The Working Time Regulations saved firms £13 million per annum by removing administrative burdens on businesses without removing employment protection, he said. The spokesman added that much of the extra cost identified by the BCC was represented by the value of the policies themselves in enhanced maternity rights for women, the minimum wage for 1.5 million workers, and better working conditions. The BCC was deliberately confusing those benefits with the "small proportion of costs" to business of administering such measures, the spokesman said.

The European Commission is taking the UK government to court for allegedly failing to enforce a directive that entitles employees to tea breaks. It further accuses the government of neglecting its working time rules, which unions say has cost staff millions of hours of leisure time. The Commission is taking its case to the European Court of Justice. A commissioner said the issues were "rest periods" and "undeclared working time" in the EU Working Time Directive.

Amicus, the UK's largest manufacturing, technical & skilled persons' union, complained to the EC about four years ago alleging the British Government was failing to introduce Working Time Directive rules. It charged that existing UK regulations encouraged employees not to take breaks at work, which are required by law. The law states employees should have breaks during the day as well as between each week or fortnight and longer breaks over the course of the year.

Roger Lyons, president of the Trades Union Congress and joint general secretary of Amicus, said, "As a result it is possible for workers to work 24/7 without a break and not breach regulations. Because of the climate of fear and downsizing in many workplaces, workers fail to take their legal entitlements to a tea break." Amicus says the government has failed to protect as many as three million white-collar workers from companies pressuring employees to do extra work at home.

Its second complaint centres on staff working voluntary hours, discounting the average of 48 specified in the directive. "While we welcome the legal action we would have rather the UK Government had chosen to apply the Working Time Directive by agreement," an Amicus spokesman said. "However, we have waited too long and there is now clearly no alternative."

Workers can still accrue holiday time even when on long-term sick leave according to a ruling from the House of Lords. The lords agreed with a claim by Keith Ainsworth, a former tax inspector in Chester who complained that HM Revenue and Customs wrongly made a deduction from his wages, involving holiday pay when he was ill. In the judgement, Lord Rodger of Earlsferry concluded workers also had a right to carry over holiday leave which they were unable to take while ill into the following year's allocation, or take pay in lieu.

Lord Brown of Eaton-under-Heywood noted, "The purpose of a "holiday" from work is, at least in part, the psychological and social well-being of the employee." He continued to say that holiday could be considered as similar to wages in terms of being something that was due to the employee whether they were ill or not. The ruling means an employee who returns to work from a year of illness would legally be entitled to four weeks' holiday immediately upon his return. The claims relate to a long-running dispute brought against HMRC by former staff who retired, or had to retire, after long illness.

In an earlier hearing, judges at the Court of Appeal ruled a worker cannot take statutory holiday while they are on sick leave and is not entitled to payment in lieu of any untaken holiday on termination of their employment. The claimants appealed to the House of Lords which overturned the Court of Appeal judgment and restored the decision of an employment tribunal after referring various questions on the case to the European Court of Justice for clarification.

Naomi Feinstein, a partner in the employment team at lawyers Lovells, said, "In a very technical ruling, the House of Lords has decided that a claim for unpaid holiday pay can be brought as an unauthorised deduction of wages claim, as well as under the Working Time Regulations 1998. Generous time limits for unauthorised deduction claims mean businesses could now face substantial holiday pay claims, for example from employees on long-term sickness absence, who have not received holiday pay because on the basis of the earlier Court of Appeal decision they were not entitled to it."

Tim Marshall, partner and UK head of employment at lawyers DLA Piper, said, "The judgment will increase the complexity of managing absence from work by allowing workers to take accrued holiday when they return to work even after many months or more than a year off. Until now the UK's Working Time Regulations required employees to use all holiday leave within a year or lose it - a cost and time efficient way to manage leave. Allowing workers to accrue statutory paid holiday entitlement during sickness absence will have serious financial and practical ramifications for employers across the UK. (Source: Daily Telegraph, Jun/09)

The EU Working Time Directive was introduced in 1993 to regulate the amount of time spent at work in order to protect the health and safety of the European workforce.

Provisions

* A person's average working week must be no longer than 48 hours in seven days. Working time includes job-related training, travelling time and paid overtime, but excludes notmal travel to work, breaks when no work is done and voluntary unpaid overtime.

* The 48-hour limit does not apply to those can choose freely how long they work, such as managing executives, those who work in the armed forces and emergency services, domestic servants in private houses or sea transport workers, mobile workers in inland waterways and lake transport workers on board sea-going fishing vessels.

* Workers are entitled to a mininum rest period of 11 consecutive hours in every 24, as well as a rest break during working time if they are on duty for longer than six hours. They are also entitled to a minimum uninterrupted rest period of 24 hours in every seven days

* Night workers are entitled to extra protection. Average working hours must not exceed 8 hours per 24-hour period and employees are entitled to free health assessments and, in some cases, a transfer to day work.

* All employees must be given paid annual leave of at least four weeks per year.

Interpretation

Like all EU directives, the Working Time Directive is an instrument which requires all member states to enact its requirements in national law. Interpretations of the directive differ across Europe: in the UK it remains possible for workers to "opt out" of the 48-hour maximum working week while France passed stricter legislation limiting the maximum number of hours spent working each week to 35.

Case Law

* The SIMAP judgement by the European Court of Justice in 2000 defined all the time that the worker is required to be present on site as actual working hours for the purposes of work and rest calculations.

* The Jaeger judgement in 2003 confirmed that the above should hold even if the worker is allowed to sleep when their services on site are not required.

* The above clarifications have had a profound effect on workers who are required to be resident on site when on call, particularly junior doctors. A 2009 report from the Royal College of Surgeons in England said that there were not enough surgeons to fill rotas if they worked only 48 hours a week, that 90% of trainee doctors were exceeding their timetabled hours on a weekly basis and that 55% reported being pressured to falsely declare their actual hours worked.

(Source: Daily Telegraph, Jun/10)