Working extra hours

The Problem
You're the manager of a chain of pubs and restaurants and you're having problems recruiting staff, particularly in the busy summer period. You therefore agree with your existing staff that they will work extra shifts and you will pay overtime rates for any shifts they work at times which would otherwise have been their time off. In addition, you will allow them unpaid leave in the low season.

The Law
The law relating to working time is found in the Working Time Regulations 1998 (the regulations), which implement the EU Working Time Directive. The provisions contain entitlements (which need to be enforced by the worker) and health and safety obligations (which are policed by various agencies). The regulations include the following:

• A limit on the average weekly working hours of 48 hours.
• The right to a 20-minute rest break if the shift is more than six hours.
• The right to 11 hours' rest in 24 hours.
• The right to an uninterrupted rest period of 24 hours in each seven-day working period (which can be a 48-hour rest period in a 14-day working period).
• The right to four weeks' paid leave in each holiday year.

Expert Advice
The manager needs to consider whether the staff are exceeding the 48-hour working week. Whether an employee is working more than 48 hours a week is calculated over a 17-week reference period. Here, the manager could either ask the employees if they're willing to sign individual opt-outs or alternatively could negotiate a workplace agreement which would extend this reference period to 52 weeks. If the employees work fewer hours in the low season it may be that, over 52 weeks, they're not working more than 48 hours per week on average.

The manager also needs to look at the rest periods the staff are getting if they're working lots of extra shifts. While employees are generally entitled to the rest breaks set out above, the regulations provide for certain "special cases", where the entitlement to daily rest, weekly rest and rest breaks during the working day are disapplied.

One of these exceptions applies where there's a foreseeable surge of activity in industries such as tourism. It's arguable that the chain's business would fall within this exception, which would mean the employees wouldn't be entitled to the rest breaks or the daily and weekly rest. Instead, however, the manager will need to ensure that they're given "compensatory rest".

There are few guidelines on what this equates to, but the Department of Trade & Industry suggests that, since all employees are entitled to 90 hours' rest a week on average, employers should ensure that they get this much rest, even if it comes at a later time than required by the regulations.

Finally, if the manager does allow the employees unpaid leave in the low season, this time off cannot count towards their entitlement to paid annual leave under the regulations. All employees are entitled to four weeks' paid leave in each year, and it isn't possible for an employee to opt out of this right or for an employer to replace it with a payment in lieu.

Check list

• Check whether the employees are exceeding the 48-hour week. If so, ask them if they are prepared to opt out. Alternatively, enter into a workforce agreement to change the period over which the average hours are calculated.
• Try to ensure that the employees get sufficient rest periods. If employees aren't receiving normal rest periods, ensure that they receive compensatory rest.
• Make sure all employees receive four weeks' paid leave in each year.
• Comply with the requirement to keep records.
  Beware!
  Employees can bring a claim to an employment tribunal if they're not receiving their entitlements or if they're penalised for asserting their rights. Further, the relevant enforcing authorities have the right to investigate, and failure to comply with the regulations is an offence which is punishable on summary conviction by a fine of up to £5,000 or by an unlimited fine for conviction on indictment.

Contacts
Alexandra Davidson or Jackie Thomas
Berwin Leighton Paisner
Tel: 020 7760 1000