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Last month Jamie Oliver attracted attention by launching a critical attack on the work ethic of young British workers, saying that they aren’t prepared to work hard, that the maximum 48 hour working week imposed by the Working Time Regulations 1998 (WTR) is “only half a week’s work” and that if it weren’t for European immigrants all his restaurants would have to shut down.

What are the regulations regarding limits on working hours and how can employers get the most out of their workforce without encouraging exploitation? What are the issues for employers to consider in preferring to take on non-British workers?

Limits on working time

The WTR obliges employers to take all reasonable steps (in keeping with the need to protect workers’ health and safety) to ensure that each worker’s average working time doesn’t exceed 48 hours a week, calculated over a reference period, unless the worker has opted out of this limit in writing. Failure to take such reasonable steps is an offence punishable by a potentially unlimited fine and up to two years’ imprisonment.

Unless the worker is exempt from the 48 hour week (for example because they are deemed an autonomous decision maker), an employment contract containing a requirement for the worker to work more than 48 hours a week will be unenforceable as a matter of law.

In additional to statutory minimum holiday provisions, along with the 48 hour week workers are also entitled to daily rest periods of 11 uninterrupted hours; weekly rest periods of 24 uninterrupted hours; and a rest break of 20 minutes when working more than 6 hours. Young workers under the age of 18 (but over compulsory school age) have additional protection in that they may not work more than 8 hours in one day or 40 hours in any one week.

Opting out

Unlike its European neighbours, the UK negotiated the right for workers to be able to “opt out” of the 48 hour limit on average weekly working time.

Workers can opt out of the limits on working time and rest breaks, provided they do so in writing. The opt out agreement can last for a fixed period or indefinitely. A worker can cancel the opt out by giving 7 days’ notice, unless the opt out agreement provides for longer notice. It is common for opt out agreements to provide that the worker must give 3 months’ notice of cancellation.

An employer should not pressure workers to sign an opt out or punish them for failing to do so, ( for example dismissing them or subjecting them to some other detriment), as this would give rise to unfair dismissal risks. However, there is currently no prohibition on refusing to employ someone unless they opt out.

Work for several employers

The WTR doesn’t expressly state that hours worked for different employers should be aggregated for the purposes of calculating average weekly working time. However, Government guidance states that all working time should be counted, not just time for one employer. This means that if a worker is known to have a second job, the employer should consider asking the worker to opt out. Alternatively, the prudent employer should ensure that employment contracts either prohibit working for others or require the employer’s written consent for doing so. If it is known that the worker has another job and they refuse to opt out, the employer should consider reducing their hours of work so that they comply with the 48 hour limit.

If workers are regularly working in excess of 48 hours a week and are unwilling to opt out then the employer should reduce their working hours, in order to comply with the WTR. If there is no direct link between the number of hours worked and the worker’s pay (for example where the worker is on a fixed salary rather than being paid by the hour) then a unilateral pay cut will constitute a breach of contract, giving rise to the risk of claims for unlawful deduction from wages and constructive dismissal. Where the worker is paid by the hour this will not be an issue.

Getting the most out of workforce without exploitation

Oliver says that when he was in his twenties, it was normal to work 80-100 hours a week. Certainly across the private sector conforming to the maximum 48 hour week is rare, and it is particularly common in industries such as the restaurant and catering industry for workers to regularly work far in excess of 48 hours a week and to agree to opt out of the WTR accordingly. This is an accepted reality of working in this industry.

Where workers are likely to work long hours, the employer should ask them to opt out in writing as detailed above. However, even if a worker has opted out of the 48 hour week, he should not be asked to work excessively long hours if this creates a reasonably foreseeable risk to his own health and safety, or that of others, because the employer has a general duty to protect workers’ health and safety.

How then to increase productivity without encouraging excessive hours and exploitation? Research usually reveals that a high percentage of non-management employees are not working at full productive capacity. It would then seem that increasing productivity during working hours may be more beneficial than encouraging a longer hours culture, particularly if that may reduce productivity even further.

There are several different ways to get more out of the workforce, with different options being appropriate for different sectors. On the increase is providing economic incentive schemes for employees, such as John Lewis’ partnership scheme, where all permanent staff are partners in the business and share in its profits. Schemes rewarding the business’ success or the employee’s personal contribution can be very effective. Some studies show that providing non financial rewards for hard work and valuable contribution (such as additional holiday) can have a measurable impact on increasing productivity and reducing workplace absence.

Hiring foreign workers

Oliver’s comments about British workers not being up to the job faced criticism from some that he was generalising and following stereotype. Certainly accusing all young British workers of not being prepared to work as hard their European counterparts is potentially discriminatory. Employers should make sure that they recruit employees based on merit alone and not because of their nationality, in order to avoid allegations of discrimination. Remember that discrimination claims can be brought by an unsuccessful job applicant and not just by an employee. In addition, when hiring foreign workers, employers should make the offer conditional on the individual having and maintaining the legal right to work in the UK, and should ensure that they check right to work documents on the first day of work and regularly thereafter, in order to comply with the right to work legislation.

Emilie Bennetts, Associate, Charles Russell LLP, emilie.bennetts@charlesrussell.co.uk