In an industry where long shift patterns are the norm, the working time legislation has a tremendous impact. But, despite, this, the law relating to this area is often misunderstood, wrote Claudia Gerrard of Excello Law in our October 2012 print issue.
The starting point is the Working time Regulations 1998. The Regulations are designed to protect employees from working long hours. As such, they state what an employer is forbidden from doing. Firstly, the employer must be aware of the health and safety issues relating to the hours which an employee works. In this sense an employee cannot be required to work more than 48 hours in a week. The normal 12 hours, four on, four off shift pattern might seem to fall foul of this rule.
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 manned guarding is provided by a lone security officer. The issue is how to comply with the Regulations when there is no-one to cover the officerโs 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 hoursโ uninterrupted rest per day or 24 hoursโ uninterrupted rest per week. A security company told me they had a guard who had to work two 12-hour back to back shifts. 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 in the industry 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. So, the industry needs to be aware that 12 hour shifts for security officers and other staff may easily fall foul of the law. And act accordingly.
Working Hours: Top Ten Tips
1) Make sure contracts of employment adequately cover working hours
Ensure that contracts clearly define the working hours required, be it 12 hour shifts or otherwise.
2) Ensure employees have opted out correctly
If an employee opts out, ensure that signed contracts are retained showing this to be the case.
3) 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.
4) 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.
5) Ensure that risk assessments are carried out at regular intervals
Risk assessments are essential both in terms of the place of work and the staffโs abilities. Working hours should automatically form part of any risk assessment.
6) 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.
7) Monitor the levels of overtime an employee is doing
On occasion, an employeeโs 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.
8) 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 companyโs approach to working hours.
9) Communicate with employees
As well as discussing any excessive overtime or long working periods, ensure that employees know the companyโs policies and are encouraged to discuss any issues or concerns the employee may have.
10) 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.
