Michael-Jon Andrews: Is there a lesson to be learnt from the French on working hours?

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It was widely reported in the media last week that the French government was introducing legislation that would prohibit employees from having to deal with phone calls or emails after 6pm.

The British media’s view of the new rules was predictably scornful even though it was based on an entirely inaccurate picture of what was going on. However, in the space of a few short hours the story snowballed to such an extent that, Axelle Lemaire, the new French minister for the Digital Economy was forced to tweet a denial.

Sandwiched in between some of the more hysterical headlines were a few voices exposing the truth of the matter. The facts are that the new rules are contained within a sector specific labour agreement only affecting about 250,000 workers in the hi-tech and consulting field and there was no mention of a 6pm cut off.

Others also pointed out that, notwithstanding the 35-hour week, the French work more hours than Denmark, the Netherlands and Norway (according to an OECD survey undertaken in 2012).

Moreover, while the British press was quick to judge the French labour agreement, they did not analyse whether or not dealing with email or telephone calls or doing any other type of work after hours, might in certain circumstances already put a UK employer at risk of breaching the law.

In terms of hours on the job, the bulk of the UK law on this issue is derived from the European Working Time Directive (WTD) and contained within Working Time Regulations 1998 (“WTR”) although harm caused by working excessive hours can also give rise to legal action under Health and Safety legislation such as the Health and Safety at Work Act 1974 and an employers’ common law duties of care.

It is critical for employers to keep this area of compliance under review given that persons guilty of offending under the WTR are liable to prosecution and a fine, which in serious cases is potentially unlimited. Moreover, Local Authorities and the Health and Safety Executive have powers to issue prohibition or improvement notices which, if ignored, could land offenders in prison for up to two years.

Many HR professionals will be familiar with the general affect of WTR Regulation 4 that restricts most categories of worker to 48 hour of work each week on average unless one of the many exemptions apply or the worker has ‘opted out’. The average hours worked each week is calculated by reference to the preceding 17 weeks of work, although this can be extended by agreement with the worker in certain circumstances. There are additional restrictions on the amount of hours that can be worked during the night.

Employers in the UK already have to be concerned with out of hours work done by on call workers in tied accommodation. This often affects care workers at homes for the elderly.

In those circumstances a worker’s working time for the purposes of measuring it against the 48 hour weekly restriction will include not just the time working their shift, but all the time they are on-call, even if they are blissfully tucked up in bed asleep. In other words their working time will be 24 hours each working day.

Domestic servants are a category of worker exempt from the 48 hour weekly restriction but non exempt workers can legitimately withhold their labour if required to work in excess of the restriction even if their contract of employment purports to oblige them to do so.

It is therefore important for employers to continually monitor worked hours carefully so they are sure not to fall foul of the law in this area. Indeed it is a requirement of the WTR that records are kept for 2 years. Most will be able to comply by relying on payroll records, which is straightforward if the worker is paid by the hour. However, the administrative burden increases for salaried workers where hours are not routinely recorded and for flexible workers where hours may vary.

Given the above legal and administrative difficulties, some employers will feel it important that ordinarily non-exempt workers have formally opted out, but that may not always be straightforward.

Often employers will deploy the strategy of including a clause in the contract of employment detailing the worker’s opt out ‘consent’. Unlike contracting out of other employment law rights, such as the right to claim unfair dismissal, there is no requirement for an employee to take legal advice before their consent to opt out becomes legally enforceable. Consequently, although this expedient approach has been open to criticism, it is not technically unlawful and there is no provision for refusing to employ a worker if he or she refuses. This would provide a complete solution for employers save for the fact that workers who have opted out can give notice of 7 days (or up to 3 months if the parties agree) that they want to opt back in.

In addition to the weekly restrictions on working hours, employers have also to be aware of the minimum daily and weekly rest breaks. Deriving as they do from the WTD which is applicable to all EU member states, these breaks are also cited in the much criticised French labour agreement but in terms of time, it goes no further than UK’s own obligations under the WTR. The WTR provides that non-exempt workers are entitled to a break of 20 minutes when the day’s work exceeds 6 hours and daily rest of 11 uninterrupted hours. Workers are also entitled to 24 hours uninterrupted rest per week or 48 hours per fortnight.

Where rest breaks cannot in certain circumstances and for certain categories of worker e.g. shift workers, be provided at the appropriate time, compensatory rest breaks can be arranged to be taken another time. The WTR is quite flexible on this issue and compensatory rest will not generally impact on working time. However it is not inconceivable where the 11 hours of uninterrupted daily rest is interrupted by an email or telephone call, that the worker may be entitled to be compensated later by time off in lieu. While it is unlawful for an employer to refuse to provide rest breaks, workers can volunteer not to take them as long as health and safety is not a concern. However it can be difficult to discern what is and what is not voluntary particularly if there is an atmosphere or pressure to achieve a certain level of performance or production.

In summary, while the specific provisions in the French labour agreement in terms of the restriction on email and telephone calls during rest breaks are unlikely to be introduced in the UK, it has serve as a timely reminder to HR professionals that they should remain vigilant insofar as working hours and rest breaks are concerned.

It is all too easy to overlook the WTR when a worker’s hours have, for example, increased incrementally over time or where an exempt worker takes on a new role that potentially brings them within scope. As with most aspects of business, good monitoring and record keeping systems will be key to avoiding the serious consequences of non-compliance.

Michael-Jon Andrews is an Employment Associate at at Surrey law firm, Barlow Robbins

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