Small changes that make a big difference
After discussing scheduling in the last two posts (looking at both the basic concepts & some advanced tips), in the sixth article of the series we are focusing on the legal aspect.
For years the law governing labour law may have seemed unclear or open to interpretation. No longer. The law is clear thanks to recent rulings.
*Please note that the information provided in this article is for informational use only. It does not, and is not intended to, constitute legal advice.
Part 6: Compliance with the Working Time Regulations & Working Time Directive
To ensure that you are complying with the provisions of the UK’s Working Time Regulations (WTR), you as an employer are obliged to keep records for two years that are adequate to show that the statutory limits are not being exceeded.
The same applies in the European Union. To follow the EU Working Time Directive you must accurately record any time worked by an employee, every day – not just overtime, but regular hours.
If working hours are recorded manually, it is not only extremely time-demanding, especially in multi-location businesses such as hospitality & retail chains, but also inefficient. Mistakes are inevitable, which could leave you open to a legal challenge.
Bizimply enables you to meet the requirements of the WTD/WTR, storing your working hours for three years, while also complying with GDPR.
However, there are some additional considerations. First, it is up to you as an employer (i.e. you are legally obliged under the WTD/WTR) to consider whether longer hours might be a problem for your employees. For example, is a member of staff working under undue stress due to long hours or the intensity of work during busy periods?
Under the WTD an employee has the right to be considered for flexible working and is protected by various other provisions in the Working Time Regulations.
These include a maximum (average) weekly working time of 48 hours, a clear pattern of work and holidays, plus the rest periods that an employee must be given daily and weekly.
The regulations also state that employees are entitled to a minimum of one day off per week. And if they work for more than six hours in a day, they must have a rest break of at least 20 minutes.
Opt-outs
That said, there is the possibility for employees to opt out of the 48-hour provision. However, this must be entirely voluntary, and it is only open to workers and employees above the age of 18. The person in question must state his/her willingness to work longer hours in writing and confirming that this is their choice.
As an employer you are therefore legally obliged not to put employees under any pressure to opt out of the 48-hour maximum and you must not discriminate against those who choose not to. By the same token, you should not show favouritism to those who do choose to opt out (e.g. by offering promotion ahead of others who are less qualified or less experienced).
Employees can cancel an opt-out even if it’s part of a contract they signed, with a notice period of between one week and three months, agreed in advance. If there is no such agreement in place, then the default is one week.
In short, it is always very important to remember that opting out has to be done individually with each employee. A lot of employees will do so willingly but you cannot enforce it as a norm for the entire workplace.
By the way, this also applies to contract staff. So you must check in advance that any temp staffing agency keeps a written record to show that staff have agreed to work additional hours.
Flexible working hours
The UK Working Time Regulations make a distinction between “workers” and employees”. You can find out the details here but essentially an employee has all the rights of a worker plus a few more that are for the most part acquired automatically after a certain period (for example, statutory sick pay, maternity leave etc.)
An important difference is that employees have a right to request flexible working hours. Flexible working may be constrained by the nature of the employment – obviously a barista cannot ask to work “home office” (!) – but as an employer you are obliged to consider any reasonable requests for flexibility.
For example, if one of your employees is a single mother who has to collect a child from school or crèche/kindergarten at 4 p.m. and then look after the child at home, it would be unreasonable to ask her to work after that time.
In the next article, we’ll discuss performance management.
