‘Lunch is for wimps’

Recent rulings in the Court of Appeal and the European Court of Justice have highlighted the claims employers can face from employees working excessive hours. Here, Emma Gray, Managing Associate solicitor at Linklaters, offers some practical tips.

Emma Gray, Managing Associate at Linklaters LLP

Key employment law issues facing employers in relation to a culture of long hours without breaks relate to working time, health and safety, trust and confidence and disability discrimination. Two Court of Appeal (“CA”) decisions and a European Court of Justice (“ECJ”) decision in 2018 have recently shed some clarity on certain issues, but there remain various grey areas which are potential pitfalls for employers.

Workers’ rights to rest

The key rights of most workers relating to rest are set out in the Working Time Regulations 1998 (the “Regulations”). Although certain exemptions apply, the main rights are to: (i) an 11-hour uninterrupted daily rest period; (ii) a 24-hour uninterrupted weekly rest period (or 48-hour uninterrupted rest period every two weeks); (iii) a 20-minute rest break for working days exceeding 6 hours; and (iv) additional “adequate” rest breaks for workers undertaking monotonous work where health and safety is at risk. Workers under 18 have more extensive statutory entitlements. Other rights to rest may be set out in employment contracts or collective agreements.

Must employers force employees to take their rest entitlements?

No – employers must ensure that workers can take rest entitlements but are not required to enforce them, provided they do not risk their own or others’ health and safety. However, if employers requires workers to work through rest breaks/periods, they must offer compensatory rest. Moreover, the Advocate General has indicated that employers must actively establish an atmosphere in which minimum rest entitlements are observed, schedule breaks during working time and ensure workers are not pressurised to work through breaks.

Workers can choose to work through rest entitlements provided this does not exceed the 48-hour weekly limit or breach rules on night working and this does not pose health and safety risks.

There is no need under the Regulations for employers to provide separate facilities or accommodation for staff to take breaks and there is no requirement for breaks to be paid.

On-call time

Workers required to be on-call present tricky issues. Prior to 2018, the following broad principles arose from the key judgments: (i) where workers are required to be at the workplace, time spent there is regarded as working time even if they are not required to perform any duties; (ii) if workers are on-call but not required to be at the employer’s premises, only time spent working is working time – the remainder as rest; and (iii) if workers have no fixed workplace but are required to travel between their home and customers, such travelling time is working time, not rest.

The ECJ (Ville de Nivelles v Matzak (2018)) has recently held, in relation to (ii), that where a worker’s freedom to participate in non-work activities is severely impacted during on-call time at home, that time is working time. However, the ECJ focussed on the fact that the worker was required to be able to report to the workplace within 8 minutes. In earlier consideration of the same case, the Advocate General had taken a slightly different position, taking the view that the quality of the time spent on standby is key, and proximity to the workplace was not the determining factor.

So, there is not complete clarity on this issue, e.g. whether (ii) above applies to a series of short interruptions in the night when the worker is at home, and not required to be near the workplace, but limiting proper sleep. It is likely to be fact-sensitive, so it may be prudent for employers to be mindful of the difference between significant interruptions or restrictions on workers’ ability to participate in non-work activities, in contrast to trivial interruptions or restrictions.

Expectation to work long hours

The CA (in United First Partners Research v Carreras (2018)) has held that a requirement to work long hours does not need to involve coercion in order to amount to a provision, criteria or practice (“PCP”) for the purpose of discrimination legislation. A pattern of repeated requests to work long hours which put pressure on the claimant to agree was capable of amounting to a PCP and was consistent with being “required” to work long hours. So employers should be mindful of disability (and other) discrimination claims where such a culture exists. Reduced hours and/or extended breaks could be reasonable adjustments for employees with disabilities.

What claims can be brought?

There can be criminal sanctions for breaching “relevant requirements” in the Regulations – the Health & Safety Executive or local authorities can, depending on the nature of the business, issue criminal proceedings.

Workers can bring Tribunal claims if they are denied rest entitlements. Compensation is determined on a just and equitable basis. In a recent case (Gomes v Higher Level Care Limited (2018)), the CA held that this does not include injury to feelings. However, given the Carreras judgment opens up the possibility of discrimination claims, it possible that claims with a discriminatory angle could involve injury to feelings awards.

Workers also have the right not to be subject to a detriment on the ground that the worker refused to comply with a requirement which contravenes the Regulations or refuses to forgo a right conferred on him by the Regulations. In cases of dismissal, this can lead to automatic unfair dismissal claims.

If workers voluntarily forgo rest breaks and this risks health and safety, a failure to require the worker to take the breaks could expose the employer to breaches of health and safety requirements, the duty of mutual trust and confidence and/or the employer’s duty of care.

Other, indirect, claims could be for personal injury (e.g. stress-related injury claims) and whistleblowing (e.g. medical staff making a protected disclosure about long working hours).

Sustained or serious breaches of the Regulations may also have reputational consequences for employers.

The future – the right to disconnect?

Although developments in working practices such as agile working, working remotely and the technological developments that make this possible have, for some, improved flexible working, the line between work and rest time has, for others, been blurred. In France, this has recently led to pressure for the “right to disconnect” being translated into law – since 2017 organisations with more than 50 workers are obliged to negotiate to put in place measures to regulate the use of electronic work communications out of hours, with a view to companies respecting rest breaks. Although France is known for its employee-friendly legislation, it is possible we could see this as a developing trend in UK employment law.

Brexit

The law on working time in the UK could do with being updated and clarified. Notably, the rules relating to on-call time and compensatory rest would benefit from clarification and modernisation. It is unclear what the status of the Regulations will be following Brexit. Aspects of the Regulations have proved contentious, so it remains to be seen whether there will be changes once the European Working Time Directive from which the Regulations derive ceases to be binding.

Practical tips for employers

Be aware that the line between what is voluntary and what is “required” may be blurred if the workplace culture is such that it is in the workers’ interests to forego breaks, e.g. pressure from managers or peers to forego breaks, or indirect means such as performance targets.

Put in place specific arrangements for taking breaks – an employer has a duty to do so regardless of whether they have been requested.

Although employers are not required to keep records of workers taking compensatory rest, doing so may help evidence compliance with obligations.

Although it may be tempting to stipulate that compensatory rest is satisfied by holiday in excess of statutory minimum entitlements, since compensatory rest must be given immediately after the relevant working period, this is unlikely to work.

Consider tailored arrangements for staff with disabilities and pregnant mothers.

Make sure that arrangements have been considered and put in place for atypical workers e.g. remote workers, night shift workers and those on zero hours contracts. The gig economy, in particular, is ripe for fresh legal challenges in this area.

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