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#1 Posted : 06 January 2004 10:52:00(UTC)
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Posted By Neal Robertson
Here`s a poser for you.
One of my employees works 19 hours part time Mon-Fri for us, and 20 hours Mon-Sat for another employer. Can he work another 4 hours voluntarily on a Sunday for the other employer without breaching the day off a week rule under the WTD ?

This would be an occasional extra, not a regular additional shift.

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#2 Posted : 06 January 2004 11:01:00(UTC)
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Posted By Sean Fraser
The guidance from the DTI has this as one of the FAQs.

The advice is that, if the 2nd employment is known, the employee should be asked to sign an opt-out or should consider reducing their working time voluntarily to ensure both don't breach the Regs.. However, if the 2nd job was not advised to the employer and there was no reason to suspect a 2nd job was being worked, then it is "extremely unlikely that the employer would be found not to have complied."

Difficult one. On one hand, employee is actually opting out (and not being forced) but this might be due to circumstances over choice, so isn't always black and white. Now that you, as the employer, knows about it you need to seek an opt-out, but it seems a bit harsh that an employer might be found liable under the Regs for the activities of an indivual in their employ but outwith their direct control at the time.

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#3 Posted : 06 January 2004 11:20:00(UTC)
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Posted By Neal Robertson
Thanks Sean,

The tricky bit here is that he`ll still only be doing 43 hours in a given week, 5 short of the opt out limit. Can people opt out of rest days? The regs are a bit foggy to say the least...
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#4 Posted : 06 January 2004 13:40:00(UTC)
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Posted By Sean Fraser
Gosh, I'm going to get a rep as an expert on this but it's only 'cos we're looking into this for offshore work and I have the book to hand, honest!

The one day entitlement can be averaged over a two week period, so presumably if the Sunday working is occasional and not a weekly occurrence, then they need an additional day off some other time during the 14 days (a whole weekend in other words). It is the daily rest period (11 hours) that cannot be interrupted or averaged. But there might just be a way round this which is in the Regs and perfectly legal.

There is a measure called 'compensatory rest' - this gives the worker the right to 90 hours rest a week. If you are complying with that then it would be acceptable.

Best thing to do is get the DTI guide - there are explanations online at:

http://www.dti.gov.uk/er/work_time_regs/index.htm

The guide itself needs to be ordered but it is very useful (as I am finding out!).
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#5 Posted : 06 January 2004 13:54:00(UTC)
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Posted By Neal Robertson
Thanks Sean
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#6 Posted : 07 January 2004 00:20:00(UTC)
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Posted By John Murgatroyd
Employers must make sure that workers can take their rest, but are not required to make sure they do take their rest.

In any case, what's the point here ?
Just pretend you don't know about the other job.
Better still, get him to sign an opt-out.
If he won't, then find an excuse to lose him.
It works for everyone else.
And by the way, the opt-out arrangement has ended, it ended last year. There are currently negotiations to see whether to renew it or ensure compliance with the whole WTD. So wait a few months and see what happens. I don't recall, and the hse database has no info on, any prosecution of any company for any breach of the WTD. My firm has had several inspections in the years since its implementation and the records of hours worked and opt-outs signed has never been inspected. Most firms don't know about the 48 hours being averaged over 17/26/52 weeks, and most don't want to know either. In fact most firms give prospective employees the opt-out to sign at the same time as the contract of employment.
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#7 Posted : 07 January 2004 09:07:00(UTC)
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Posted By Neal Robertson
John, thanks for contribution.

Its actually the other employer (NHS) who are wanting the guy to work but are getting worked up over this - as you say if he hadn`t let on about the othe job I`d be none the wiser.

What if some of our staff have bar jobs at the weekend ... another can of worms creaking open? I think I`ll go for a lie down.
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#8 Posted : 07 January 2004 11:06:00(UTC)
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Posted By Adrian Watson
Dear All,

I have just reread the working time regulations 1998 and the 2002 & 2003 amendment regulations. None of these regulations require the employer to have regard for time spent working for other employers. As such what a person does outside his employment on rest days or time off is irrelavent, providing that the employee does not endanger the health and safety of other persons, through tiredness and does not breach the terms of his/her contract of employment.

Regards Adrian Watson.
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#9 Posted : 07 January 2004 19:24:00(UTC)
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Posted By John Murgatroyd
From the DTI website:

What should an employer do about a worker with a second job?

If a worker is known to have a second job, an employer should ask the worker to consider signing an opt-out agreement if the total time worked is in excess of 48 hours a week. If a worker does not wish to sign an opt-out in this situation, the worker should consider reducing their hours to comply with the 48-hour limit.

More generally, employers may wish to make an enquiry of their workforce about any additional employment. However, if a worker does not tell an employer about other employment and the employer has no reason to suspect that the worker has another job, it is extremely unlikely that the employer would be found not to have complied
............................................
So it seems that if an employer KNOWS the person has a second job, then compliance to the 48 hours is needed. And would seem mandatory.
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#10 Posted : 07 January 2004 22:30:00(UTC)
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Posted By Adrian Watson
Dear John,

Whilst the DTI's web site does state what you say, the Working Time Regulations state that working time is when someone is "working, at his employer’s disposal and carrying out his activity or duties".

Therefore if the person is working for a second employer he is not at the first employer's disposal and is not carrying out the first employers activities or duties. Because of this, the first employer has no responsibility for what the employee does during the second employment. As such I would suggest that the DTI's advice regarding the second employment is wrong.

If you don't agree it may be worth getting legal advice from a lawyer on this matter.

Many Regards,
Adrian Watson
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#11 Posted : 08 January 2004 00:07:00(UTC)
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Posted By John Murgatroyd
Yes.
I did ask my union about it.
As far as they are concerned if the first employer knows about the second employment then the hours count.
Personally. I care not.
You either do what you're told or you get another job.
Believe me, this opt-out letter is just pants.
"if you chose to use your right to opt-out of hours in excess of 48, you may not be considered for ANY overtime that may be available"
(take verbatim from the letter given with the contract of employment that every new employee gets when joining the company)
Instead of getting worked-up thinking about what you cannot do, get some professional advice about what you can do: and get away with.
H&S ?
Yeah, right.
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#12 Posted : 08 January 2004 08:59:00(UTC)
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Posted By Shane Johnston
If you are aware that the your employee has a second job, and lets say he works 52 hrs per week for them, and then you employee him to work in the evenings for a further 25 hrs per week working in a hazardous environment, and lets say he has an accident at your workplace because he can't concentrate because he is so run down. You may be held partly accountable as your risk assessment should have taken into consideration the fact that he could reasonably be expected to be run down due to the hours he works in total. So regardless of the WTD, working hours need to be considered in risk assessment.

The rest days part of the WTD is an employee entitlement, and is something that the employee can decide whether to follow or not. So if the employee is working because he wants to, and not because you are forcing him to then there is no problem.

The 48hr week is there to stop employers forcing emplyees to work more than that period. If extra hours are worked but this is voluntary overtime this is excluded from the WTD and need not be recorded.

Many of our employees regularly work more than 48hrs per week, but any hours over the contractual 37hrs are purely voluntary. No "opt-out" required. As a good employer though, we do recognise that working excesive hours can be detrimental to health, and so we encourge all employees to take at least one days rest per week and to take the 11 hours rest per day entitlement. We also require line managers to take into consideration hours/rest when authorising overtime.

Shane.
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#13 Posted : 08 January 2004 09:57:00(UTC)
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Posted By Sean Fraser
Shane,

You stated that because your people work more than 11 hours over their contractual weekly hours on a voluntary basis, they did not require to sign an opt-out agreement. The definition is not whether it is vountary or not, it is to do with the level of control the employee has in regulating their own workload. What you refer to is "unmeasured working time".

Examples from the guidelines are:

1. "Worker A is paid by the hour. He occasionally works overtime, for which payment is made. The working time does not fall within the scope of this exception [i.e. is not unmeasured working time] because it is measured."

2. "Worker D's contract also requires a working week of 42 hours, but the volume of work coming to him is greater than someone could reasonably be expected to do in that time. However, he has discretion and a clear choice ovber how much work is done, how his work is done and how to meet his objectives, for example he can prioritise tasks and so, if he choses to, he could limit his working week. Therefore, to the extent that he can limit them, the time worked beyond that required by his contract falls within the scope of this exception [i.e. still working but the hours are not taken into account - note there is no mention of overtime payment!]

3. "Worker E, whose contract requires a working week of 40 hours, works in an environment where collegues habitually do a 12-hour day even though the work does not necessitate such hours. Worker E works the long hours because she is led to believe that her employer considers it unacceptable to work shorter hours. Therefore, the time does not fall within the scope fo this exception because she is required by her employer to work extra time."

Be careful - if you have not requested an opt-out and people are routinely working beyond the 48 hour limit, make absolutely sure they are working hours that can be deemed "unmeasured". Otherwise, there is a strong possibility that with the increased awareness of WTD just now, you might be challenged.

Even so, all of this is simply detail. Once again we are arguing the detail of law and how to get around it or meet the bare minimum. I can understand the NHS concern - after all, as a huge monolith they are an easy compensation claim target - but it all comes down to how much personal choice we actually have, rather than the situations we are forced into by circumstance and culture.

The danger of a knackered and stressed out employee is the crux of the matter - working long hours does not mean greater productive hours. Indeed, it usually reduces productivity over time and could be detrimental to the bottom line, not increase it! We spend a lot of time at work - but how much of it is actually working?

Over-work your employees and you will be actively harming your business - humans aren't machines, they wax and wane throughout the day according to their own in-built metabolism, their lifestyles and their philosophy to life. Nor are humans standardised. Striking the right balance is a matter of understanding, compassion and mutually agreed goals. This is something no regulation or rule book can ever reasonably dictate - it has to be individually negotiated. General rules are fine, but there needs to be a flexibility of approach to help fit the work to the people, not the other way round.
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#14 Posted : 09 January 2004 01:27:00(UTC)
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Posted By John Murgatroyd
If your employee/s are hourly paid then their working time cannot be considered unmeasured at all.
http://www.amicustheunio...kingtimeregsdetailed.pdf

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#15 Posted : 09 January 2004 09:59:00(UTC)
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Posted By Shane Johnston
Sean,

Thanks for that. I was under the impression that our employees were covered by the "partly unmeasured working time" as any additional hours are purely voluntary. However following your posting I've checked what you said and ...... bugger .... I've now got to implement an opt-out.

Shane.
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