This is a copy. Please refer to the PDF handbook for the full version.
ABOUT THIS POLICY
1.1 This policy sets out the arrangements for ensuring the company’s compliance with the aspects of the Working Time Regulations 1988 (WTR) which relate to the limit of 48-hours per working week.
1.2 This policy applies to all Staff and all Umbrella/PEO Staff. In this policy, the term ‘worker’ includes all who fall into any of these categories.
1.3. This policy does not form part of any employee’s or worker’s contract of employment or engagement and we may amend it at any time.
2. THE UNDERLYING LEGAL REQUIREMENT
2.1 The WTR impose a limit of 48 hours working time (averaged over a period) to all workers who have not expressly agreed in writing to opt out of that limit.
- (a) Shorter non-averaged limits (8 hours per day and 40 hours per week) apply to young workers (who are under 18), but our contracts are not designed for such workers, and so the position of such workers will not be considered further here.
2.2 The regulations impose the following obligations on the employer:
- (a) in respect of all workers who have not opted out in writing,
- (i) to take ‘all reasonable steps’ to ensure that limit is complied with;
- (ii) to keep records which are adequate to demonstrate the employer’s compliance with the limit (provided that daily working hours need not be recorded if compliance can be demonstrated without keeping them);
- (b) in respect of all workers who have opted out, to keep records; and
- (c) to retain all such records for two years.
2.3 Criminal sanctions apply in the case of employers who fail to comply with these requirements. It is therefore fundamentally important that we can demonstrate our compliance.
3. GENERALLY
3.1 Contractual provisions:
In most contracts within our documentation the relevant provision will be found in section 7, as follows:
- 1. ‘Working Time’ means working time as defined by the Working Time Regulations 1998 as amended (“WTR”) as amended.
- 2. The Working Time Regulations 1998 require that you do not work for more than 48 hours in any week, unless you have agreed in advance to waive that limit. You may indicate such agreement in Annex A.
- 2.1. If you have indicated such agreement in Annex A, the 48 hour limit specified in the Working Time Regulations 1998 shall not apply to your employment, for so long as such agreement remains in force; you have the right to give us 3 months' notice in writing to withdraw such agreement.
- 2.2. If you have not indicated such agreement in Annex A, or if you do so indicate but subsequently withdraw such agreement, the Company must ensure that it does not offer you work which would result in you working for more than 48 hours in any week. You must therefore keep the Company informed of the hours that you work for third parties, so that it can comply with its own obligations.
- 3. Time spent travelling to the Client’s premises; lunch breaks and other rest breaks shall not count as part of your Working Time for these purposes.
3.2 Opting out:
Annex A of the contract offers a way the worker can indicate a wish to opt out of this 48 hour limit:
Please download the latest handbook to view thw "Annex A. Working time election form"
3.3 Freedom of choice: The worker must be given a free choice to make an opt out decision. This means that
(a) we must not seek to impose a default position of ‘opt out’; and
(b) the worker must be free to change his/her mind, and to withdraw consent (although a notice period to withdraw of up to three months can be required).
3.4 Experience shows that most workers will choose to opt out when signing up with us, but some will not.
(a) Where a worker does not choose to opt out, we must take ‘all reasonable steps’ to ensure that we do not offer work which might cause the worker to exceed that 48 hour limit.
In practice, this means that, particularly where a worker’s hours are variable, for each worker who has not opted out,
(a) we must monitor the total hours worked (including any hours notified to us that the worker has worked for third parties) on a week by week basis, and
(b) we must not permit the worker to exceed the 48 hour limit, unless the worker chooses to give us a written opt out.
4. PROCESS
To ensure compliance with the requirements, the following process will be followed:
4.1 A record must be maintained of all workers who have opted out, and of all changes (either way) notified to us of this opt out decision.
4.2 For all workers who have not opted out, a weekly report should be run, listing all those who have worked in excess of 42 hours in that week.
- (a) This report must include the number of hours notified to us that the worker has worked for third parties.
4.3 During the following week, we must speak to all workers who appear on this list,
- (a) remind the worker that (s)he has not opted out, and that we therefore have a duty to monitor his/her hours, including those worked for any third party; and
- (b) invite the worker to opt out, to avoid the necessity for us to continue such monitoring; if the worker now agrees to opt out, then we must get that in writing from the worker, using the form of Annex A to the contract (see above).
4.4. If the worker does not accept that invitation to opt out, we must continue monitoring. If such a worker then exceeds 45 working hours in a week, we must
- (a) speak with the worker, again offer the opportunity to opt out, and
- (b) tell him/her unless (s)he does now choose to opt out in writing, we will have to write to the agency, tell them that the worker has not opted out, and ask the agency to ensure that they do not offer the worker any work which might cause the 48 hour limit to be exceeded.
- (c) If the worker still does not choose to opt out, we should follow through and so notify the agency.
4.5. If a worker who has not opted out at any point exceeds 48 hours, we must speak with the worker, and again offer the opportunity to opt out;
- (a) If the worker does not choose to provide a written opt out, we should tell the worker that,
- (i) we will pay the worker for those excess hours on this occasion, but
- (ii) in the event of a recurrence, we would have to give consideration to terminating the worker’s engagement.
4.6 If a worker who has not opted out exceeds the 48 hour limit a second time (in the real world, this is unlikely to happen, but the possibility cannot be ruled out), we should seek advice about terminating the worker’s engagement.
4.7. Records of all actions taken must be retained and kept for 2 years, against the possibility that we are required to demonstrate our compliance.
