Posted By Bev
Dear All,

I know this is not strictly a health and safety topic as it is enforced by the DTI, however if any of your jobs are anything like mine, you will have some dealings with the Working Time Directive.

We have some guys here who are employed on an as required basis, so do not work set periods every week. I currently log all their hours to monitor the 48 hour average over a 17 week reference period.

My question is: Do we need to pay them holidays, as per the four weeks paid leave entitlement per year?

I have been looking at SI 1998 1833 and the crux seems to be whether or not they are a "worker". We pay them directly for the hours they work, they do not submit invoices so are not self employed. We do their PAYE and NI deductions.

If we do indeed have to pay them for holidays, does anyone have any ideas how on earth we can calculate entitlement, as some weeks they may work, say 60 hours, next week 25 hours, next week 8 hours, next week 39 hours, etc, etc! I know it should be four weeks pro rata but this would entail the use of a crystal ball unless it is calculated retrospectively.

I would really appreciate it if anyone else has come across this and what your interpretations led you to do.

Many thanks,

Bev

Posted By Sean Fraser
Bev,

I agree with Kieran, it is an H&S issue since it involves caompetence and judgement - a tired employee may (or will) be less likely to make an accurate and reasoned judgement and take risks they wouldn't normally do, for all sorts of reasons.

On the WTR, the requirement for paid holidays only applies to actual working time per week. The example given in the guidance goes like this: a part-time employee works a normal week of three days for 5 hours a day - they therefore work 15 hours a week. The time off will be (5 x 3) x 4 = 60 hours. In practical terms, this would be taken as the week being only 3 days, so 4 weeks translates as an entitlement of 12 days. Obviously, if the contractual hours chyange, the entitlement will also change but you just need to use good sense to accomadate this.

In your particular instance, I would suggest a reasonable approach would be using the averages you have produced to determine what an average week entails, then use that as your base. So, it it turns out an average week is 5 hours per day for 3 days, apply this like the example above.

This issue has been raised recently so the following two threads may be of help:

http://www.iosh.co.uk/in...view&Forum=1&Thread=6817

http://www.iosh.co.uk/in...view&Forum=1&Thread=6480

Hope that helps.

Posted By John Murgatroyd
When the WTR were implemented in the UK, the government imposed a 13-week 'qualifying' period before workers were entitled to take annual leave. The courts have now decided that this was unlawful and contrary to the spirit of the original European Directive. The government is in the process of modifying the UK law to remove the 13-week requirement.
with no contract of employment the holiday entitlement is the average hours worked over the 12 weeks preceding the holiday.
In any case, it isn't less than 4 weeks, minus bank holidays...which is 12 days left !!! (each week being average time worked per week.....)
Both hours worked and holiday are part and parcel of the european working time directive.
The negotiated opt out has now expired and the gov is frantically negotiating to continue the opt out for the 48 hours. Current status is that the commission is going to say no.

Posted By John Murgatroyd
Unmeasured working time derogation

2.5.4. Regulation 20 of the Working Time Regulations 1998 disapplies regulations 4(1) and (2), 6(1) and (2), 7, 10(1), 11(1) and (2) and 12(1) (i.e. the provisions creating entitlement to minimum daily and weekly rest and breaks, setting the limit for average weekly working hours and on daily hours of work for night workers) for workers:

"... when, on account of the specific characteristics of the activity in which they are engaged, the duration of their working time is not measured or predetermined or can be determined by the workers themselves ......"

2.5.5. Workers such as senior managers, who can decide when to do their work, and how long they work, are likely to pass this test. Those without this freedom are not.

2.5.6. The derogation covers not only those activities whose nature means that working time is not "measured" but also activities where (on account of the specific characteristics of the activity concerned) the time it takes to do the work which they may be required to perform cannot be "predetermined", as well as situations in which the activity inherently means that the worker's working time can be determined by the worker.

2.5.7. It is not possible to say exactly what activities would fall into the relevant category and which would not. Once again, in any disputed case concerning the application of the derogation in particular circumstances, only the courts could ultimately decide the matter


It now looks as if the unmeasured time part of the directive does not apply to production workers....but check it out...
http://www.dti.gov.uk/er/emar/wtr.pdf

Posted By John Murgatroyd
Well, they can't force them to sign the opt out.
Given the hours they work, if they are coerced into signing they would have a perfect right to take the company to an industrial court. Most of the unions would support them, even if they aren't IN any union.
If they work more than a few hours a week, they should have a contract of employment. If they don't, then their holiday isn't pro-rata but the hourly average for the 12 weeks preceding their holiday.
I think that if they work....no too complex, BUT...you need to read the part time workers regulations 2002...........I'll re-phrase that YOUR EMPLOYER **REALLY** needs to read them at: http://www.dti.gov.uk/er/ptime.htm
and soon I think.