Working
Time Regulations
specimen
documents by Roderick Ramage, solicitor, www.law-office.co.uk
first published
in New Law Journal (newlaw.journal@butterworths.co.uk) on 21 August 1998 and in
Kelly's Draftsman (17th edition) published by Butterworths in
December 1998
DISCLAIMER
This article is not advice
to any person and may not be taken as a definitive statement of the law in
general or in any particular case. The
author does not accept any responsibility for anything that any person does or
does not do as a result of reading it.
note
The Working Time
Regulations 1998, SI 1988/1833, came into force on 1 October 1998, implementing
the Working Time Directive (Council Directive 93/104/EC) and the Young Worker’s
Directive (Council Directive 93/33/EC), and impose limits on workers’ working
time. Unlike most elements of the statutory
employment protection law (unfair dismissal etc), but (more or less) in common
with health and safely at work law, which is the area in which these
regulations operate, they apply to workers, whether or not they are employees
in the strict "master and servant" sense of the word. The following are, as indicative precedents,
specimens of the kind of documents envisaged by the regulations, which will
need to be drafted to suit the circumstances of each case. They first appeared in New Law Journal on 21
August 1998.
1 agreement to disapply the 48-hour maximum
working week1
[name]
Limited/plc
registered in
England and Wales under company number [number] whose registered office
is at [address] ("the Company")
the Employee2 |
name address |
48-hour
working week
The Working Time
Regulations 1988 provide that the average working time including overtime does
not exceed 48 hours for each seven-day period.
The Company and the Employee agree that this limit shall not apply to the
Employee. [insert alternative limit
or other arrangement, if any] This agreement will remain in force [for a
period of [one year] (or) indefinitely].
The Employee [or the Company] may terminate this agreement at any time
by giving not less than [three months] written notice to the [Company (or)
the other].
date [date]
signed on behalf
of [name] Limited/plc
signed by [employee]
1 This agreement is made under reg 4(3)
between the employer and the individual worker.
There is no need for a relevant agreement, or a collective or workplace
agreement, but nothing prevents this disapplication from being dealt with by
one of these agreements.
2 "Employee" is the expression
more usually used in employment documents and will usually be appropriate, but
the regulations use "worker".
2 workforce agreement1
The Working Time
Regulations 1998
[name]
Limited/plc
registered in
England and Wales under company number [number] whose registered office
is at [address] ("the Company")
1 The commencement date of this agreement
is [date].
2 This agreement applies to all the
employees of the Company [except those whose terms and conditions of employment
are provided for wholly or in part in a collective agreement/the following
collective agreements [particulars]].
3 The topics in the Working Time
Regulations which are dealt with in this agreement are set out in the attached
schedules.
[4 This agreement will remain in force until
[[date not more than five years after the commencement date] when it
will cease to have effect.]
dated [date]
signed on behalf
of the Company
signed by a
majority of the relevant employees
(or)
signed by the
following duly elected representative of the relevant employees
schedule
[1] - length of night time2
[reg 2(1) definition of "night time"] [NB
this may be in any other relevant agreement]
Night time means
from [10pm to the following 5am (or) midnight to the following 7am].
(or)
Night time means
[8] hours from [9pm to the following 5am (or) midnight to the following
8am].
schedule
[2] - night work as a proportion of annual hours [reg
2.1 definition of "night worker"]
The Regulations
provide that a night worker is a worker who as a normal course works at least
three hours of his daily working time during night time. It is agreed that this definition of night worker
will not apply. In [place of (or)
addition to] it, a night worker shall be any worker who [formula of
description of proportion of annual hours likely to be worked during night time]
schedule
[3] - definition of working time [reg 2.1
definition or "working time"] [NB this may be in any other
relevant agreement]
In addition to
time which a worker "is working at his employer's disposal and carrying
out his activity or duties" the following will be included in working
time:
schedule
[4] - reference period3
[regs 4(3)(a) and 6(3)(a)] [NB this may be in any
other relevant agreement]
The reference
periods for the calculation of average weekly hours and night workers’ average
normal hours shall be consecutive periods of 17 weeks, each starting
immediately on the end of the previous period and the first starting on [1
October 1998 (or) the commencement date of this agreement]. No reference period shall start on the date
on which a worker starts work unless it is a 1 October.
(or)
The reference
period for the calculation of average weekly hours and night workers’ average
normal hours shall be a moving period of 17 weeks ending on every [Sunday].
(or)
The first
reference period for the calculation of average weekly hours and night workers’
average normal hours shall be the period of 17 weeks starting on [1 October
1998 (or) the commencement date of this agreement].. Thereafter the reference period shall be
consecutive periods of 17 weeks of which the first starts on the first Monday
after the Christmas and New Year holiday period. [note: this leaves 8 days out of the year
(17 x 7 x 3 = 357 days, which it may be possible to ignore if they fall
conveniently in the Christmas and New Year holiday period]
(or)
In each year
there shall be four overlapping reference periods of 17 weeks each for the
calculation of average weekly hours and night workers’ average normal hours as
follows:
Whenever two
reference period overlap, all calculations shall be based on the longest of the
two periods.
schedule
[5] - night workers’ average normal hours4
[reg 6(1),(2)]
A night workers
average normal hours may exceed 8 in every 24 hours. [If the limit is not simply disapplied but
is replaced, set out alternative arrangements]
schedule
[6] - night workers’ hours, special hazard or heavy strain5
[reg 6(7)]
A night workers
hours may exceed 8 in every 24 hours notwithstanding that the work involves
special hazards or heavy physical or mental strain. [If the limit is not simply disapplied but
is replaced, set out alternative arrangements]
schedule
[7] - night workers, special hazard or heavy strain [reg
6(7)]
For the purposes
of the Regulations relating to night work, "special hazards and heavy
physical or mental strain will be identified as follows. [Definition or method of identification]
schedule
[8] - daily rest period6
[reg 10(1)]
There shall be no
set daily rest period for adult workers.
[If the limit is not simply disapplied but is replaced, set out
alternative arrangements]
(eg)
The daily rest
period for adult workers [shall be not less than [number] hours which]
need not be consecutive.
schedule
[9] - weekly rest period7
[reg 11(1),(2)]
There shall be no
set weekly rest period for adult workers.
[If the limit is not simply disapplied but is replaced, set out
alternative arrangements]
(eg)
The weekly rest
period for adult workers [shall be not less than [number] hours which]
need not be uninterrupted.
schedule
[10] - rest breaks during daily working time8
[reg 12(1)]
There shall be no
set rest breaks during daily working times for adult workers. [If the limit is not simply disapplied but
is replaced, set out alternative arrangements]
(eg)
Adult workers
will be entitled to two rest breaks of [10] minutes if their daily working time
exceeds six hours to be taken at times to be [posted on the notice board (or)
agreed daily by each department supervisor].
schedule
[11] - annual leave9
[regs 13, 14 and 15] [NB this may be in any other relevant agreement]
The start date
for the holiday year shall be [date].
The amount of
holiday pay in lieu of holidays at end of employment shall be calculated as
follows.
(a) If, when the worker's employment is
terminated, the number of days of main holidays which he or she has taken in
the relevant year differs from his or her entitlement (calculated at [1.25]
days for each complete month of employment in the holiday year), then, a
payment for the number of days' difference will be either paid to him or her or
refunded by him or her, depending whether the amount actually taken is less or
greater than his or her entitlement. The
amount paid or refunded will be the number of days difference multiplied by the
daily equivalent of the worker's annual basic salary (on the basis of [240 (or)
365] days a year).
(b) The worker will not be entitled to a
payment under sub-paragraph (a) if the Company is entitled to and does
terminate his or her employment summarily or if he or she refuses to take any
holiday entitlement during his or her notice period.
(or)
The amount of
holiday pay in lieu of holidays at end of employment shall be calculated in
accordance with each worker’s contract.
1 A workforce agreement is a means of
disapplying some of the provisions of the Working Time Regulations. The conditions for a workforce agreement are
contained in Schedule 1 to the Working Time Regulations. Each of the matters capable of being dealt
with by a workforce agreement are dealt with in a separate schedule in this
precedent. All these matters may also be
dealt with by a collective agreement. A
workforce agreement maybe made only for workers, whose terms and conditions are
not provided for, wholly or in part, by a collective agreement. In addition certain matters may also be dealt
by a relevant agreement, as indicated where applicable in the schedules to this
precedent. A relevant agreement is
defined in reg 2 as a workforce agreement, a collective agreement "or any
other agreement in writing which is legally enforceable as between the worker
and his employer." The matters, which are not so indicated can be dealt
with only by a workforce or collective agreement.
2 The default night time is from 11 pm to
6 am: reg 2(1).
3 The default reference periods for the
calculation of average weekly hours and night workers’ average normal hours are
any periods of 17 weeks: regs 4(3)(b) and 5(3)(b).
4 The default night hours are eight in
each 24 hours averaged over the reference period (normally 17 weeks): reg 6(1).
5 The default night hours in these
circumstances are eight in each 24 hours and averaging is not allowed.
6 The default daily rest period for adults
is eleven consecutive hours in every 24 hours: reg 10(1).
7 The default weekly rest periods are an
uninterrupted 24 hours in each seven-day period or two 24-hour periods or one
48-hour period in each 14-day period: reg 11(1), (2).
8 The default rest breaks for adult
workers are 20 minutes uninterrupted and if possible away form the workstation
if the daily working time is over six hours.
9 The minimum of three weeks paid holiday,
rising to four weeks from 23 November 1999 cannot be disapplied. Only (broadly speaking) the holiday year, the
timing of holiday and the calculation of pay in lieu of holiday on the
termination of employment can be disapplied.
The default holiday year is each year starting on 1 October 1998 or, if
later, the date on which the worker starts employment: reg 13(3)(b). The default formula for pay in lieu of
holiday is a time apportionment according to the formula in reg 14(3). In default of agreement on the times when
holidays are taken, the notice procedure in precedent 3 will apply.
3 notices relating to holiday dates
1 by worker to employer1
I will take [one
week (or) [two (or) three] weeks]] holiday starting on [date]
and ending on [date].
(or)
I will take one
[half] day’s holiday on [date] [in the morning].
2 by employer to worker2
We require you to
take [one week of your holiday in the period starting on [date] and
ending on [date] (or) your three weeks holiday entitlement on the
following dates: one week from [date] to [date] and two weeks
from date to [date]].
No holidays may
be taken in the period from [date] to [date] or the period from [date]
to [date].
We have received
your election of your holiday dates (for one week from [date] to [date])
which are not acceptable [because of [reasons]]. We regret therefore that you may not take
your holiday between those dates.
1 The notice by the worker must be in
writing and be given to the employer in advance of the first date in it by
twice as many days as the number of days or part days of holiday intended to be
taken. The worker will be entitled to
take the holiday on the dates elected by him, unless the employer has exercised
its rights to specify when the worker may or may not take his holiday. See reg 14.
2 The notice by the employer must be in
writing be and given to the worker in advance of the first date in it by at least
the number of days or part days of the intended holiday. The employer’s notice will not override a
notice given by the worker, unless it is given to him either on or before the
date of the worker’s notice or within the following seven days. See reg 14.
4 compromise agreements1
[Include the
following paragraph in a "normal" compromise agreement]
x You agree to
refrain from instituting or continuing before an Industrial Tribunal your
complaint against the Company in respect of your allegation that the Company
has [refused to permit you to exercise a right under regulation [number -
see reg 30(1)] of the Working Time Regulations 1998 (or) subjected
you to a detriment under s 45A of the Employment Rights Act 1996 (or)
dismissed you unfairly for a reason specified in s 101A of the Employment
Rights Act 1996]. The complaint to which
this agreement relates [arose out of the following facts (or) is the
complaint in your application to an industrial tribunal in case [number]].
[Sufficient
facts to identify particular complaint]
1 Reg 35 prohibits contracting out of the
provisions of the Working Time Regulations (except as expressly permitted) but
in reg 35(3) provides for a compromise agreement. The basic principles are the same as for
unfair dismissal and other employment protection rights (see Kelly's Draftsman,
precedent [31-489]. It seems that the
parties cannot use a compromise agreement (or ACAS conciliation) to contract
generally out of any of the limits or obligations in the regulations, because
it must "relate to the particular complaint". However, where an employee has a complaint on
which he is entitled to take proceedings against the employer in an Employment
Tribunal under the regulations, he can by a compromise agreement (or ACAS
conciliation) agree to refrain from instituting or continuing proceedings. Therefore to this limited extent the parties
may contract out of the limits or obligations in the regulations.
copyright
Roderick Ramage
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