What is working time?
Where busy employees are involved in varied activities, sometimes off site, it can be difficult to pin-down exactly what constitutes working time.
We know that you are anxious to safeguard the well-being of your employees and make sure that they receive proper breaks both during and between shifts. However, where busy employees are involved in varied activities, sometimes off site, it can be difficult to pin-down exactly what constitutes working time and what does not. The question of working time is of course relevant to the 48 hour limit on the average working week and rules on night-work.
Back in November we reported on the case of Edwards v Encirc Limited in which an Employment Tribunal took a very limited approach to working time. It held that time spent at meetings carrying out trade union duties was not working time for the purposes of the Working Time Regulations 1998.This meant that the employer was not obliged to take this time into account when considering the mandatory rest periods to which the employees were entitled. However, this case has more recently been overturned on appeal, with the Employment Appeal Tribunal taking a much broader approach.
Under the Working Time Regulations a worker is entitled to a daily rest of eleven uninterrupted hours in every 24-hour period.
Mr Edwards and Mr Morgan were employed by Encirc Ltd and, in addition to their operational roles, they both held Union posts. Mr Edwards was a health and safety representative and Mr Morgan a shop steward. They were both due to work twelve hour night-shifts. When Mr Edwards attended a meeting of health and safety representatives which started at 1pm and finished at 4pm, he did not have an eleven hour rest break between the end of the meeting and the start of his next shift (even when the employer had allowed him to start the shift later than usual). Similarly, when Mr Morgan attended a Union meeting in his capacity as a shop steward at 9am which finished at 1pm, even though the employer allowed him to start his shift at 10pm that night (later than usual), this allowed him only a ten hour gap between the end of the meeting and the start of his shift.
Both employees brought an Employment Tribunal claim stating that the meetings should be counted as working time and consequently they argued that they should be allowed to rest for at least eleven hours before carrying out further work. The Employment Tribunal that first heard the case held that time spent at the Union meetings did not count as working time and rejected both claims. The Working Time Regulations define working time as “any period during which [the worker] is working, at his employer’s disposal and carrying out his activity or duties”. The Employment Tribunal held that although Mr Morgan and Mr Edwards were working while attending the meetings, they were not carrying out their normal operational duties and were not at their employer’s disposal. It held that their attendance was ‘to represent the interests of their members’ and they were ‘beyond the control and direction of their employers’ during this time.
However, the EAT has held that the ET adopted too narrow an approach in reaching this conclusion. It has stated that an employee is not required to be under the employer’s specific control and direction for their time spent carrying out duties or activities to count as working time.
It was not disputed in this case that the employer had required the claimants to attend the meetings and had decided where and when the meetings would be held and how they would be conducted. It was agreed that, had the meetings taken place during the employees’ shifts, their employer could have pulled them out as required to undertake other duties.
The EAT concluded that the activities being carried out by the employees were still effectively for their employer’s benefit, arose from the employment relationship and had been done with the employer’s knowledge at an approved time and in an approved manner. This was sufficient for the activities to constitute working time. It did not matter whether the activities or duties were those specifically set out in Claimants’ contracts of employment.
What does this mean for me?
Many of you may have employees who are given time off to undertake trade union duties, which may (as in this case) include time with pay. However this Judgment reinforces that when organising shift patterns you may need to count time spent carrying out union activities as working time.
Whilst it is important to make sure that those employees who have additional Union responsibilities are able wherever possible to carry these out, it is important to be aware that a break of less than eleven hours between a Union meeting and the start of an employee’s shift may in some circumstances breach the Working Time Regulations.
Do remember to check your own documents, policies and procedures, which may explicitly set out which activities will constitute working time. Bear in mind too that Unions may want to renegotiate or clarify the scope of activities that may constitute ‘working time’ in light of this case.
Significantly, this is the first EAT decision on whether time spent attending union meetings or health and safety meetings counts as working time under the Working Time Regulations 1998.
It does not go as far as confirming that any time spent in any trade union meeting will always constitute working time. This will depend on the facts of the case.
However, as this is an appeal level decision, Tribunals in future will be guided by the principles set out in the Judgment. It provides a clear indication that a broad interpretation of working time should be adopted. It leaves less room for you to argue over whether a work-related activity constitutes working time or not.
The principles of this case may also arguably extend beyond union activities to other grey areas such as on-call time, sleep-in time or travel time too (although these areas have also been addressed separately in other Employment Tribunal cases).
Claire Hollins is an Associate in the Weightmans employment and pensions team based in our Manchester office.
If you are worried about working time please do not hesitate to contact Claire Hollins (firstname.lastname@example.org or 0161 214 0518) or speak to your usual Weightmans contact.