A matter of timing - the working week

Staff may no longer be able to opt out of time regulations

by David Clifton, one of thePublican.com's legal team from solicitors Joelson Wilson​

When the Government introduced the Working Time Regulations in 1998 it included a clause allowing individuals to opt out of the maximum 48-hour working week.

However, as readers of thePublican.com will be aware, this clause is due for review before November 23 2003.

The European Commission has already indicated that it wants it removed.

Within the member states of the EC, only the UK and Ireland currently allow workers to opt out, although by the time of the review Ireland will no longer allow this.

When the Government initially introduced the opt out clause, the TUC said that it was wrong from a health and safety perspective to regard 48 hours as a reasonable working week, only then to suggest that individuals should be free to work more than 48 hours without limit. One can expect a similar view from it now.

However, many pub managers work more than 48 hours a week, leading the industry to fear that removal of the clause will increase costs and force some operators out of business.

While the opt-out clause remains, the following requirements must be observed:

• the agreement to opt out must be in writing
• the agreement can either specify its duration or can be of an indefinite length
• whatever the length of the agreement, the employee is able to terminate it by giving, at most, three months' notice
• the employer must keep up-to-date records of all employees who have signed such an agreement.

It should also be noted that in a 1999 case, a worker who had an additional job working in a bar on Tuesday and Thursday evenings was told at an interview with his main employer that his basic working week would be 40 hours but that he would be required to work overtime.

It soon turned out that the overtime requirements conflicted with the bar job and the worker refused to sign an opt-out agreement because the long hours would not fit in with his evening job. As a result, he left his main job. The matter ended up in the employment tribunal, which found that he had been unfairly dismissed in that all he had done was exercise his rights under the Working Time Regulations.

Regulation four provides that an employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that a worker's average working time (including overtime) shall not exceed 48 hours for each seven-day period.

It is this health and safety issue that is likely to dominate the debate on whether the opt-out clause should disappear.

Company Law Review​

The final report of the Company Law Review was published on July 26 2001, a culmination of three years' consultation commissioned by the Department of Trade and Industry.

Speaking on behalf of the steering group which led the review, Rosemary Radcliffe said: "Fundamental review of company law is long overdue. Our recommendations will re-shape company law for small companies. They will simplify and modernise the law for all companies, reflecting the demands of the modern economy. They are designed to achieve fair and proportionate regulation for companies and their directors, and to encourage directors to observe high standards. They will enable the law to respond more rapidly and more flexibly to changing needs in the future."

The Company Law Review makes the following recommendations:

• a simplification of the law for small companies, with smaller decision-making and administrative requirements, less burdensome accounting and audit obligations and some major simplification of the law for private companies generally
• a statutory statement of directors' duties to encourage responsible and informed decision-making. Directors will also need to take account of wider interests such as relations with employees, suppliers and customers and the impact of their actions on the community and the environment
• an "Operating and Financial Review" by larger companies. This will cover future plans, opportunities, risks and business strategies and will allow shareholders better access to financial and other information
• the streamlining of procedures to remove unnecessary constraints and costs including measures to reform complex and outdated rules on company share capital
• new arrangements to keep the law up-to-date and responsive to changing needs in the future.

There is currently no set date for the introduction of any new legislation since the review remains at the consultation stage. However, we will keep you posted with any further news.

Related stories:​

48-hour working week loophole to be closed (17 July 2001)