Right to opt out of 48 hours
By Philip - Tuesday, April 28th, 2009
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By Nicky - Thursday, April 2nd, 2009
Following a showdown with the EU Conciliation Committee, the UK and other EU member states have successfully retained the right to opt out of the maximum 48 hour working week.
Accordingly, the Working Time Directive will remain, for the time being, unaltered.
For more details please click here.
What are your views? Are you in support of the opt out provision or would you prefer to see a glass ceiling effect on the number of hours worked?
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By Emma - Tuesday, January 13th, 2009
It will probably not have escaped your notice that following investigations by the BBC and the Observer newspaper it has been alleged that a Primark knitwear supplier, TNS Knitwear, based in Manchester employs illegal migrant workers and pays them £3 per hour for working up to 12 hours per day, 7 days a week. For more see here.
Oh dear. This is problematic on a number of counts if proved. Employing migrant workers is a minefield and employers face civil and criminal sanctions, including hefty fines, if they employ migrant workers unlawfully. Then there’s the minimum wage to consider - £3 per hour is almost half the current rate of £5.73 for workers aged 22 and above. And then there’s the small issue of working an 84 hour week. Wonder if they’ve been asked to sign an opt out from the Working Time Regulations…
Don’t forget we can advise you if you have any queries about employing migrant workers, or, of course, the minimum wage or Working Time Regulations.
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By Nicky - Thursday, December 18th, 2008
The European Parliament yesterday voted for the UK’s working week to be limited to an average of 48 hours. This decision is subject to great criticism from employers who claim that individuals choose to work longer hours for a number of reasons including furthering their careers and to earn extra monies. It is believed by some employers that taking away an individuals right to choose to work additional hours may cause a backlash with lower paid individuals who rely on overtime demanding higher wages to compensate them.
This European Parliament’s decision will now be transferred to the European Council to discuss further before reaching a final decision. In any event even if the opt out provision is scrapped then it will not be until 2011 at the earliest before it would become UK legislation.
For further details please refer to Personnel Today.
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By Nicky - Friday, November 21st, 2008
Following on from my blog on Wednesday, for those of you who were not paying attention earlier this week then please click here for details, it would appear that employers are becoming increasingly concerned with regards to the possible impact that the loss of the WTD opt-out provision may have on their business.
Personnel Today report that one business in particular are planning to resolve the potential problem by using work experience students to cover the hours that are currently being worked by full time employees in an overtime capacity. This in itself, however, is likely to raise further issues at a later stage both legally and practically. I think we shall have to wait and see how this develops over time.
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By Nicky - Wednesday, November 19th, 2008
There is some concern among employers as to how they will maintain sufficient staffing levels if the UK loses its ability for employees to opt-out of the Working Time Directive (WTD) next month.
The WTD places a limit on the number of hours each week that an employee can work. This is currently 48 hours. However, at present there is a provision within the WTD that allows an employee to “opt-out” of this 48 hour working week enabling them to work in excess of 48 hours per week. This is of course dependent upon the individual employee’s job role and may be subject to further restrictions i.e. those who are employed to drive vehicles etc.
Is is of course arguable that it is not practicable in some industries to impose a limit of a 48 hour week, as demonstrated in this article. It is also a clear indicator of problems that some employers may face in the future if the opt-out provision is lost.
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By Jenny - Thursday, June 12th, 2008
A recent agreement within the EU Employment Council will allow the UK to continue permitting employees to opt-out of the 48-hour maximum average working week. A provision in our Working Time Regulations means that people have the right to work longer than 48 hours a week should they choose to do so.
In the UK the 48 hour week maximum working week imposed may be disapplied by agreement in writing (often referred to as an ‘opt-out’ between the employer and the employee). Employers should therefore ensure that employees who could be working more than 48 hours a week on a regular basis are asked to sign an ‘opt-out’. Without this employers could be in breach of the Working Time Regulations and therefore open to tribunal claims.
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By Liam - Friday, May 9th, 2008
In Miles v Linkage Community Trust Limited, the EAT have held that employers do not infringe the Working Time Regulations in failing to give employees a daily rest break of 11 hours duration unless and until the employee objects to the failure to give such a break. Once the employee asserts his right to the break and is declined that right, the employer infringes the Working Time Regulations.
In Miles, the Tribunal held, and the EAT agreed, that it is possible for no award to be made even though a finding of breach of the regulations had been made.
This decision does seem to remove the teeth from the WTR, although as long as the Tribunal has a discretion to make an award (which it does) this should prevent flagrant breaches of the regulations.
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By Sarah - Tuesday, September 4th, 2007
A new survey has revealed that the number of people working over 48 hours a week has risen from 30% in 2002 to 36% in 2007.
The importance of the 48 hour week of course comes from the Working Time Regulations (WTR) and directly from Europe. The UK is more unique, as it currently has the 48 hour opt out where employees can agree to work in excess of the 48 hours in writing. There is much dislike from Europe about this provision in our Regulations which is not in the Directive but whilst it may not be here to stay, it is here for the time being.
It is important to remember that staff who could be working in excess of 48 hours on a regular basis should be asked to sign an opt out to prevent Tribunal Claims. Without the opt out employers could be in breach of the WTR.
The survey indicates that UK staff are working as much as one full day more than they did a decade ago when only 26% of their counterparts worked in excess of 28 hours. It is to be remembered of course that the WTR only came into force during that period so it is interesting to note that despite the WTR, we are actually working longer. This of course impacts on our work/life balance.
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By Sarah - Friday, August 3rd, 2007
Statistics released today show that one in five workers do not take a lunch break. I have to confess often myself included. However, employers may be rubbing their hands with glee at the thought of getting more out of staff but they need to think of the bigger picture.
In fact, they could be failing in their obligations under the Working Time Regulations which state that where a worker’s daily working time is more than six hours, they are entitled to a rest break of not less than 20 minutes. Also in the long term this can affect their health and ability to do the job.
Interestingly, the same survey team in a different survey found that nearly one quarter of those employees surveyed enjoy an alcoholic drink during their lunchbreak. It would seem there for that since 20% do not take lunch breaks, that actually, it is 25% of the remaining 80% that enjoy a tipple or too. Normally this is more often the case in the summer as employees enjoy sitting outside down the pub in their lunchbreak.
There is a fine line however to be drawn and the employee must be careful that he/she is not contravening health and safety by working in the afternoon under the influence of alcohol. This is particularly the case when they are due to get behind the wheel or operate machinery.
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