Welcome Guest! The IOSH forums are a free resource to both members and non-members. Login or register to use them

Postings made by forum users are personal opinions. IOSH is not responsible for the content or accuracy of any of the information contained in forum postings. Please carefully consider any advice you receive.

Notification

Icon
Error

Options
Go to last post Go to first unread
Admin  
#1 Posted : 10 August 2005 14:35:00(UTC)
Rank: Guest
Admin

Posted By jackw. Scenario: I work for a LA department, which by its nature has to perform/provide a number of statutory services to the public. Because of the excessive pressures, unrealistic deadlines etc. and the constant need to work long hours. We have great difficulty in retaining middle level admin staff. As a result our senior admin staff are working long hours, in some cases seven days a week. In one conversation recently I found out that in addition to working until 7 or 8 p.m. most nights, Saturday and Sundays she on increasing occasions finding to complete work dealines. Senior managers are aware of this and are allowing it to continue. I mentioned this in the passing to one of our senior personnel officers. A lady I have found to be good at her job and well up with current law and practice. She had some knowledge of this employee but indicated it was up to the employee. I disagree and feel senior managers should not allow this situation to continue and believe they/we have a duty of care to prevent this person from “burning” her self out let alone have no social/home life re the balance of work and home life. I also believe that if this employee does “break down” we would/could be subject to a civil claim re failure in our duty of care by allowing her to work such excessive hours regardless of her own wishes to “get the job done” Views please. ta
Admin  
#2 Posted : 10 August 2005 14:45:00(UTC)
Rank: Guest
Admin

Posted By J Knight Hi jack, Two things come to mind; working time regs and Walker vs etc etc. WTR do impose a duty fo care on employers, and they are supposed to be for H&S reasons, John
Admin  
#3 Posted : 10 August 2005 15:17:00(UTC)
Rank: Guest
Admin

Posted By Melanie Harrison If you have any pregnant employees working long hours this also needs to be considered especially if they have a long drive to and from work as well.
Admin  
#4 Posted : 10 August 2005 16:57:00(UTC)
Rank: Guest
Admin

Posted By Chris Pope Recently the owner of a courier firm was prosecuted for making her drivers work long hours, I think one fell asleep at the wheel
Admin  
#5 Posted : 10 August 2005 18:01:00(UTC)
Rank: Guest
Admin

Posted By Paul Leadbetter I hope the managers aren't putting their faith in 'volenti' in the event of a claim! Paul
Admin  
#6 Posted : 10 August 2005 18:03:00(UTC)
Rank: Guest
Admin

Posted By Frank Hallett You already know the answers to the question! Like so many organisations that preach but don't apply - the employees all have the individual ability to sue for breach of duty [MHSW & WTR] as well as the always enervating and salutory prospect of watching the LA Trading Standards or H&S enforcers prosecuting their employers. Surprisingly, neither happen very often; I wonder why? Frank Hallett
Admin  
#7 Posted : 11 August 2005 08:09:00(UTC)
Rank: Guest
Admin

Posted By Lumpy As long as the employer is not "forcing" the individual to work these long hours you are not breaking any statutory obligation. WTR give employees the right to limit their week to 48hrs, 11hrs consecutive rest per day and 2 days away from work per fortnight. But as stated this this a right, and it is up to the employee to take advantage of those rights. That said, as an employer, you do have a duty of care. We make all employees aware of their rights, and keep a watchful eye over hours worked. If someone is regularly working more than 48hrs per week, we question the reason. A company Director was fined approx £2k last year because one of her employees crashed his car. The authorities investigation noted that the individual had, on a regular basis, worked excessive hours (14-16 hour days on occasions), and this contributed to the accident. Sorry I can't remember the case name, but if you can find it the fact that the Director, not the company, received the fine might act as a wake up call to your senior staff. Lumpy.
Admin  
#8 Posted : 11 August 2005 09:11:00(UTC)
Rank: Guest
Admin

Posted By Frank Hallett Sorry about this Lumpy, but I must disagree about the "forcing" v "voluntary" issue. Apart form the WTR [Employment law and applies to offices as well as other activities] which stem directly from an EU H&S Directive] the obligation is clearly upon the employer to manage the H&S implications from allowing employees to work outside their hours as evidenced by a growing number of successful prosecutions [always after the event so far] relating to failures to manage these consequences of what is essentially a failure of the employer to comply with MHSW Regs. Frank Hallett
Admin  
#9 Posted : 11 August 2005 09:45:00(UTC)
Rank: Guest
Admin

Posted By J Knight Agree with Frank; the employer has to try and require the employee to keep within the WTR; the duty is on the employer. Opt-outs can be used, but not by default, John
Admin  
#10 Posted : 11 August 2005 10:14:00(UTC)
Rank: Guest
Admin

Posted By jackw. Hi, Thanks for the responses. i agree with Frank and feel that we as the employer have a duty of care to prevent workers placing them selves at risk regardless of how they do this. I have pointed out to managers the possible consequences of allowing this practice to continue. Problem is that a cultue of presentteeism has developed to an extent that the majority of staff particularly at the middle level are working excessive hours and indeed many fail to even take a proper lunch break and can be found snatching a bite to eat at their desk. As in all things H&S we can only advise, point out the legal position and the probably liabilities. I am a little disapointed in our HR response but then they are as guilty of allowing their staff to do the same. Cheers.
Admin  
#11 Posted : 11 August 2005 10:23:00(UTC)
Rank: Guest
Admin

Posted By Jez Corfield Q. Have the employers done everything reasonable in this case? They may have policies and say the right things, but does this authority monitor the hours worked? Also is there evidence of workload and hours worked being discussed with this employee in their supervision? There are times when employees hoard work, and willingly take it home, almost hiding it from their bosses, but, so long as the employer has appropriately raised it with the individual, and this is recorded, then they should be in the clear. I suspect that the employer has not even done any monitoring, or raised this with the individual, in which case they could be leaving themselves vulnerable. Jez
Admin  
#12 Posted : 11 August 2005 12:02:00(UTC)
Rank: Guest
Admin

Posted By lawrence baldwin The WTR like all our legislation is complex, but states that: No one can be forced to work more than an average of 48 hours a week against his or her will; However there are exceptions and these exceptions are extremely varied including optout agreements. The watch word or key phrase for any exception is "worker choice without detriment". Some of your guys, jack "may" unwittingly fall into a category of exceptions for which additional time worked would not count towards the accumulated working time for the purpose of the regulations. The DTI have produced guidance on this topic at: http://www.dti.gov.uk/er/work_time_regs/wtr0.htm Section 8 details the exceptions which I refer to. Lawrence
Admin  
#13 Posted : 11 August 2005 15:35:00(UTC)
Rank: Guest
Admin

Posted By Lumpy Frank, I stand by my previous posting: "As long as the employer is not "forcing" the individual to work these long hours you are not breaking any statutory obligation. WTR give employees the right to limit their week to 48hrs, 11hrs consecutive rest per day and 2 days away from work per fortnight. But as stated this is a right, and it is up to the employee to take advantage of those rights." The fact that an individual works longs hours, is in itself not a breach of statute. It may be a breach of a common law duty of care, but that is not a breach of statute. Lumpy
Admin  
#14 Posted : 11 August 2005 16:08:00(UTC)
Rank: Guest
Admin

Posted By John Webster Define "force". It can take many subtle forms, but so long as an employee's allocated workload is such that it cannot be completed within normal working hours, I would argue that the employee is being forced to work extra hours. A culture of presenteeism is usually based on fear, whether it be fear of letting the team down, fear of letting clients or customers down, fear of being branded a lazy 9-5er or a troublemaker if you complain, fear of being seen as not-up-to-the job. It may stop just short of bullying and harassment, but it becomes what is expected. Unfortunately, in some jobs the workload cannot be controlled. If you do not or can not recruit enough staff to spread that load, then everyone else just has to work longer and longer hours. Thats force.
Admin  
#15 Posted : 11 August 2005 16:25:00(UTC)
Rank: Guest
Admin

Posted By jackw. Hi, Again thanks for the responses some more helpful than others. Whilst I appreciate the debate about WTR etc. etc. I was more interested in the views re the duty of care prospective. The person in question appears to feel, as the senior admin worker that she has the responsibility to ensure the work is completed regardless. Of course there is an amalgam of issues not least recruitment and retention of staff. With the latter the most problematic. We can recruit staff, as the pay etc. is relatively competitive. But retention for the reason stated: long hours and constant pressure, is impossible with it becoming a revolving door situation. The record being 2 days for one new start. I stick by my view that this employee should not be allowed to continue on this course of action. Don’t know about you guys but my view is she will eventually “breakdown” physically or emotionally or both and then the piper will have to be paid and any decent no-win-no-fee devil will wipe the floor with us. Cheers.
Admin  
#16 Posted : 11 August 2005 16:35:00(UTC)
Rank: Guest
Admin

Posted By Lumpy I agree totally with the view that the employer should do something before this individual becomes ill. Have a look at the HSE stress management standards, control of work, work demands etc. If you follow these standards you will satisfy your legal obligation to undertake a risk assessment for stress) and you may find you have significant "Stressors" thoughout the organisation all revolving around lack of control and work pressure. Lumpy.
Admin  
#17 Posted : 11 August 2005 16:46:00(UTC)
Rank: Guest
Admin

Posted By Rob T It would probably be a good idea to get a senior manager to talk to the individual first expressing a view that working excessively long hours isn't the company(LA) ethos. Coming from above this should alleviate the concerns of the individual about being called a skiver or "letting the side down". However, some people thrive on long hours and their life may revolve around the job which, just because you haven't got that mentality, doesn't make it wrong. Your duty as I see it is to ensure that the individual doesn't feel pressured to do those hours. By the way, the Management regs don't apply to hours worked (I challenge anyone to find specific reference to working hours in them) so let's not start quoting red herrings, and the Working Time regs are not enforced by the HSE. Enforcing people to cut hours against their will can be just as damaging as forcing overtime. Each individual should be treated as an individual. As with most H&S stuff there is no black or white solution.
Admin  
#18 Posted : 11 August 2005 18:20:00(UTC)
Rank: Guest
Admin

Posted By EE Our company use a transport company to deliver goods - their hourly paid employees are close to minimum wage and consequently work long hours (minimum 60 hours / week - may get to >80 hours during summer months). All the employees sign the UK exemption for the "regulatory" WTD - try telling these employees and their families that they can only work 48 hour weeks. People take risks and are prepared to take risks "non valenti fit injuria" or whatever that latin garbage states.
Admin  
#19 Posted : 11 August 2005 21:12:00(UTC)
Rank: Guest
Admin

Posted By John Murgatroyd Actually, the working time regulations are enforced by the HSE. They (WTR) are a health and safety measure. HSE is responsible for the enforcement of: The maximum weekly working time limit; Night work limits; and; Health assessments for night work. HSE does not however, enforce: Time off; Rest break entitlements; or; Paid annual leave entitlements.
Admin  
#20 Posted : 11 August 2005 21:18:00(UTC)
Rank: Guest
Admin

Posted By John Murgatroyd Forty eight hour week What is the 48 hour week? Under the Working Time Regulations, qualifying workers should not work more than an average of 48 hours per week over a 17 week period (this period can be extended in certain circumstances). However, workers can choose to agree to work more than the 48 hour average weekly limit. If they do so the agreement must be in writing. Holidays - leave entitlement Is there a 'standard leave' entitlement? Under the Working Time Regulations workers are entitled to four weeks paid leave each year (pro-rata for part-time workers). The Regulations allow employers to introduce an accrual system if they wish, for workers starting employment on or after 25 October 2001, but only during the first year of employment. Under such a system, leave is accrued monthly in advance from the first day of employment at the rate of one-twelfth of the annual entitlement. Can employers specify when leave should be taken? Yes, an employer can require a worker to take all or any of the leave entitlement on specified dates provided the worker is given notice before the leave is due to start. The period of notice must be at least twice as long as the leave period, for example, three weeks leave would require a minimum of six weeks notice. Otherwise, workers are entitled to choose their leave dates subject to giving notice in the same way as employers are required to do and any other company rules. Such rules should be notified to workers in company documentation, eg written statement (click here for more on written statements) or in the company handbook. What is a 'normal week's pay' for holiday entitlement? a worker with regular working hours would receive what they would earn for a normal working week a worker whose normal working hours vary from week to week, would receive the average hourly rate of pay over an average of their normal weekly working hours through the previous 12 weeks; or a worker with no normal working hours would receive an average of the pay received over the previous 12 weeks. Is there a statutory entitlement to bank and public holidays? No. It is up to the worker and the employer to agree days where a worker may receive leave as a benefit under the terms of their contract. However, as with other contractual leave, bank and public holidays can be used to discharge an employer's responsibility for providing the statutory leave under the Working Time Regulations. Can workers 'carry over' leave? There is no legal right to carry the statutory leave entitlement over from one leave year to another unless the worker's contract allows for it. If, however, you are entitled to move leave under your employment contract, the excess can be carried over provided that the employer's arrangements allow this. What happens when workers leave their job? When workers leave their employment they should be paid for any untaken holiday that they have accrued in the current holiday year by the time that they leave. Pay for all holidays is that which would be received for basic contracted hours including any shift premiums. Overtime can only be taken into account when it is guaranteed by the contract. Where wages vary, eg through a bonus scheme, pay is based on an average over the previous 12 weeks. If the worker has taken more leave than they are entitled to on termination, the employer, by agreement, can recoup the excess from the worker, usually by a monetary payment. Nightwork - working time regulations Should night workers work a maximum number of hours? Employers are required to take all reasonable steps to ensure that the 'normal' hours of their night workers do not exceed eight hours in 24 hours, averaged over a 17 week reference period. 'Normal hours' will not include overtime unless it is required under the contract. There is an actual limit of 8 hours in each 24 hour period where the work involves special hazards or heavy physical or mental strain. If workers are seen to be working in excess of an average eight hours per night, the employer will have the responsibility to make sure the regulations are upheld, or that the employees agree to modify or exclude the regulations by a collective or workforce agreement. If the employees do modify or exclude the regulations, records will have to be maintained of exactly what hours are kept. Are night workers entitled to free health checks? Under the regulations the night worker is entitled to the opportunity of a free health assessment at regular intervals. The appropriate frequency of repeat assessments will vary between individuals, according to factors such as the type of night work, its duration and the age and health of the individual worker. Where appropriate, the employer should be guided by the judgement of a suitably qualified health care professional. It will be appropriate to carry out health checks once a year, though employers can offer more than once a year if they feel it necessary. Rest breaks - daily and weekly What entitlement is there to rest breaks during the working day? A worker has the right to a break of 20 minutes if required to work continuously for more than six hours. The break should be taken during the six hour period and not at the beginning or the end of it. The breaks do not have to be paid unless the employment contract provides for this. What rights do workers have to daily and weekly rest periods? A worker is entitled to an uninterrupted rest period of 11 hours between each working day and one uninterrupted weekly rest period of not less than 24 hours in each 7 day period. The weekly rest period can be taken as either 2 periods of at least 24 hours in each 14 day period or 1 uninterrupted period of no less than 48 hours in each 14 day period. What is the position concerning young workers? There are different rules for young workers in respect of maximum daily and weekly working time, night work, daily and weekly rest and rest breaks. These rules can only be waived in exceptional circumstances and with limited exceptions any waiver will be subject to the provision of compensatory rest. Excluded sectors Adult workers in transport (ie workers in the airline industry who are covered by the Aviation Directive, road workers who are subject to the Road Transport Directive, sea workers as covered by the Seafarers' Directive and mobile workers in inland waterway and lake transport) - although this exclusion does not apply to non-mobile workers who are employed in sea fishing and transport, inland waterways and lake transport. sea fishing and other work at sea services such as the police and armed forces where their activities conflict with the provisions of the regulations are excluded from the following rights along with doctors in training: the maximum weekly working time the length of night work health assessment for night workers the transfer of night workers to day work on health grounds daily rest weekly rest rest breaks and paid annual leave From 1 August 2004, doctors in training will be subject to weekly working time limits which will be phased in over a five year period. Those in domestic service or whose working time is unmeasured or predetermined, either in part or totally, are excluded from certain rights. Additionally other adult workers in specified industries or engaged on certain activities (for example work in prisons, agriculture, essential services such as gas or electricity) may be excluded from some of the rights, for example daily and weekly rest, rest breaks, provided that an equivalent period of compensatory rest is given. How many hours a week can be worked? Workers cannot be required to work more than an average of 48 hours per week unless they agree in writing to work more than this; the average working time is normally calculated over a 17 week period, but can be longer in certain situations (26 weeks) where it can be extended by agreement (up to 52 weeks). Working time includes travelling time where this is part of the job, working lunches and job related training but not travelling between home or office, lunch breaks, day release courses or evening classes. Where can you get more information? Further information can be found on the DTI website. Acas publication Holidays and Holiday Pay Sunday trading (England and Wales only) Is it correct that all shop and betting workers can refuse to work on Sundays? No. The position is that: a shop worker who started their employment on or before 26 August 1994 (2 January 1995 for betting workers) have the right not to work on Sundays unless they are employed to work Sundays only a shop/betting worker who started their employment on or after the above dates and who is required to work on a Sunday under their employment contract can give three months notice to the employer, in writing, of opting out of Sunday work (one month in certain circumstances - see below) shop/betting worker in either of the two categories above can decide to opt-in to Sunday work if he or she wishes to by giving the employer written notice of this. Does my employer have to tell me of my Sunday working rights when I first start work? Yes. Where you started work as a shop worker on or after 26 August 1994, or as a betting worker on or after 2 January 1995 and are required to work on Sundays under your employment contract. This explanation has to be in a prescribed written form and be issued within two months of the individual agreeing to do Sunday work. If this is not done then the individual only has to give the employer one months' notice of opting-out of Sunday work.
Admin  
#21 Posted : 12 August 2005 10:49:00(UTC)
Rank: Guest
Admin

Posted By H Klinkenberg Jack I have read the responses so far and some alarm me while some are giving good advice. My advice is think about the risk of litigation. The number of cases where employees are making work related stress claims against their employer is increasing. I know because I am often employed as a consultant to help the employer escape damages, however sometimes I am working on behalf of the employee intent on getting as much money as possible out of their employer. I have to make a living you know! If I was representing the employee I would try to prove that they have been put in an impossible position regarding the hours they work. If they were to refuse to work the extra hours then they would have been victimised by the employer – and claim that this situation is proof of this! I would check that the employer had undertaken stress risk assessments and if they had not that would be a claimed contempt of MHSW Regs and/or negligence. If they had undertaken their stress risk assessments I would want to see how they had been done and what assessment was made regarding the employee's work area. I would be looking for an ineffective or fudged stress risk assessments. I would try and prove that the employee was being put at an unacceptable risk due to stress and tiredness, and that the employer was causing unacceptable stress due to work life balance issues. Finally I would be looking for any sort of potential discrimination to underpin the case so a generous out of court settlement would be offered. You are right to be worried as too often we get tied up in the details and miss the important bigger picture.
Admin  
#22 Posted : 12 August 2005 13:56:00(UTC)
Rank: Guest
Admin

Posted By Jim Walker EE, Can lorry drivers really work 80 hour weeks? As a fellow road user I find that truley frightening.
Admin  
#23 Posted : 12 August 2005 14:04:00(UTC)
Rank: Guest
Admin

Posted By J Knight Sadly EE is right, stating only what is true. The problem with his attitude to latin garbage is threefold, as we all know. They may 'agree' to work long hours, but that won't stop them from suing for compensation in the event of an injury; they may have volunteered to drive while knackered but the people they kill on the A14 haven't and finally, volenti non fit injuria is not a defence against a statutory duty. Perhaps instead of conniving with (and perhaps excusing?) careless penny pinching employers maybe they could be asking for a better wage so that something like two of them wouldn't have to die every week, and in the process kill many more, John
Admin  
#24 Posted : 12 August 2005 14:33:00(UTC)
Rank: Guest
Admin

Posted By jackw. Hi guys can we stick to the issue of duty of care. For the record I am a qualified and experienced individual and am aware of all the regs, HSE stress management tools etc. etc. I was just looking for a view on the duty of care issue not a run thru the WTR's. cheers
Admin  
#25 Posted : 12 August 2005 14:59:00(UTC)
Rank: Guest
Admin

Posted By J Knight Hi, Getting people (and I include myself) to stick to the topic on this forum is like herding cats. Apologies on my part for drifting. As for the DOC, I'd say you've got one, but how far you can force somebody to go home is a moot point. We have a situation where an employee won't take holidays; we know that his personal circumstances are very distressing, and he's coming to work rather than staying home. We still feel that we would be responsible if he e.g. caused an accident through fatigue, and are taking steps to persuade him that he should take holidays for our sake (invoking DOC) even though he won't take them for his. These steps are carefully documented so that we can show that we were mindful of our duty and did try, John
Users browsing this topic
Guest (2)
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.