Does an employee's journey to work count as working time for the purposes of Working Time Regulations 1998?
'Working time' is defined in the Working Time Regulations 1998 as:
- Any period during which the worker is working, at their employer's disposal and carrying out their activities or duties;
- any period during which the worker is receiving relevant training; and
- any additional period designated as working time under a relevant agreement.
Travelling time will usually count as working time where travel is for business purposes and/or is an integral part of the job (for example a travelling salesperson or training provider). This will usually include travel during normal working hours, and travelling between sites or clients.
An employee's travelling time from home to the workplace, and back again, will not usually count as working time. However, if the worker is genuinely peripatetic and has no normal or habitual place of work, the time spent travelling between home and the premises of the first and last customers designated by the employer will usually constitute working time under the Directive (see the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another 2015). Partly for this reason, many employers choose to maintain a nominal base for staff to work from, even if they are 'on the road' a lot and visit that base infrequently.
Can we insist that our staff work on a Sunday?
Some protected shop or betting workers have the right to refuse to work on Sundays, even if they have previously entered into a contract requiring them to do so. No minimum amount of continuous service applies. Such workers will forfeit their protected status if they give their employer an 'opting-in' notice and enter into an express agreement to work on Sundays. They may 'opt-out' again at any time, by giving their employer three-month's written notice of their intention to do so. An employer must advise a new shop or betting worker in writing of their right to opt out of Sunday working. For more information about this right please speak to your HR Rely advisor.
Outside the retail and betting sectors, employers are free to require staff to work on a Sunday if necessary. However, to avoid allegations of discrimination, it is important not to be too inflexible, and to consider an employee's individual circumstances wherever you can (for example a strong preference to attend church/observe a rest-day, or difficulties in arranging childcare). If the requirement for Sunday working is very important to your business, you may be able to objectively justify it, even if some employees may be disadvantaged. For more information or to talk through your options please contact your HR Rely advisor.
What are the limits on working time for mobile, road transport workers?
For the purposes of the Road Transport (Working Time) Regulations 2005, the working time of mobile workers is restricted to an average of 48 hours a week over the relevant reference period, and must not exceed 60hrs in any single week. No opt-out from the average 48hr week is permitted. The working time of a mobile worker who performs night work must not exceed 10 hours in any 24-hour period. Night work is any work performed during night-time, which is defined as the period between midnight and 4am for goods vehicles, and the period between 1am and 5am for passenger vehicles. The night work limit can be exceeded only where this is permitted by a relevant agreement.
For the purposes of the road transport regulations, working time will usually include driving, unloading and loading, assisting passengers on and off the vehicle, cleaning and vehicle maintenance, and all work to ensure the safety of the vehicle, cargo or passengers. Breaks, rest and periods of 'availability' are not generally included in the calculation of working time for these purposes.
Some of our warehouse staff have occasionally carry out some driving duties. Will they be covered by the special working time rules that apply to road transport?
No, provided that their driving duties are only occasional. From time to time, non-mobile workers such as warehouse workers or mechanics will diver larger vehicles within the scope of the EU driver's hours rules. Such occasional mobile workers will be subject to the Working Time Regulations 1998, and not the more specific Road Transport (Working Time) Regulations 2005. An 'occasional' mobile worker is defined as one who does less than 11 days work under the driver's hours rules, during a reference period that is shorter than 26 weeks, or less than 16 days work under the rules where the reference period is 26 weeks or longer. If you have any questions about how the various rules on working time apply, or which working time regime applies to your employees, please contact your HR Rely advisor.
Can I pay temporary workers a monthly sum in lieu of holiday?
As far as any statutory holiday entitlement is concerned the short answer is no. All workers, regardless of their length of service, are entitled to annual leave under the Working Time Regulations 1998. The system of making monthly payments in lieu of holiday is known as 'rolled-up holiday pay' and, in the past, was often used for temporary or casual workers to limit the amount of time taken off by them. However this system was ruled unlawful by the European Court of Justice in the case of Robinson-Steele. Here it was held that rolled up holiday pay would deter workers from taking holiday, as they would not receive pay whilst absent. There is some debate about how this ruling is applied in the UK. However the government advises that such a system is unlawful and should not be used.
Therefore employers should look at other methods of paying holiday pay to temporary and causal workers whose end date is unknown. A common method is to allow these workers to accrue holiday at a notional monthly rate. Their final pay should then be adjusted according to the length of the period actually worked.
A payment in lieu of holiday is lawful on termination of employment and should be made to compensate workers for holiday accrued but not taken. However you should consider whether the worker is employed under an 'umbrella contract' or works on a series of discrete contracts. Umbrella contracts can be implied by conduct and would mean that the worker’s employment continues in between assignments. As such their holiday would continue to accrue during rest periods. Therefore the end of an individual assignment will not terminate the contract under which they are employed and a payment in lieu of holiday cannot be made. To help avoid this implication the contract under which the temporary or casual worker is engaged should state that they are only employed during periods in which they are actually working.
The employment status of temporary and casual workers is not always clear. Therefore if you employee a casual worker on a series of assignments you should contact the HR Rely team for advice.