|
The Working Time Regulations 1998 came into force on 1 October 1998, implementing the European Working Time Directive's health and safety measures on working time, night working, rest breaks and paid holidays.
However, as permitted by Article 17(1) of the Directive, regulation 20 provided an exemption from the working time, night working and rest break provisions for workers whose working time, as a result of the nature of the work performed, is not measured or predefined, or can be determined by the worker. Examples of such workers, as listed in the regulations, are
- managing executives or others with autonomous decision-taking powers,
- family workers,
- workers officiating at religious ceremonies in churches and religious communities.
This exemption applies to workers who exercise complete control over their working hours, without monitoring or control by the employer. An indicator would be whether the individual can decide whether to work or not on a particular day or night, or take rest breaks, without consulting the employer.
In June 1999, the then Trade and Industry Secretary, Stephen Byers, announced a number of "new measures to cut red tape and reduce the regulations on business". One of these measures was to be a further exemption from the working time, night working and rest break provisions of the Working Time Regulations. The press release explained: "Already, the limits do not apply to directors and executives and other so-called 'autonomous workers' - people who often find it difficult to measure when they are working and when not. Under the revised guidance, it will be clear that more people can benefit from this exemption and do not need to keep records of the hours that they work."
The new exemption was introduced by means of the Working Time Regulations 1999 and came into force from 17 December 1999. Regulation 20(2) provides that, where a worker's working time is partly measured, predetermined or determined by the worker and partly not, the provisions relating to weekly working time and night work only apply in relation to that part of the worker's work which is measured, predetermined or cannot be determined by the worker himself.
According to the guidance given by the Department of Trade and Industry (DTI) in its guidance on the Working Time Regulations, this exemption applies, for example, where a worker
- has discretion and choice over how much work is done, can prioritise tasks and could choose to limit the working week
- works long hours only because of a belief that the employer considers it unacceptable to work shorter hours
- can decide how and when to work, choose what to do, establish priorities and determine the time and effort devoted to tasks
- chooses, for reasons of personal interest or self-motivation, to go beyond the work that is expected, e.g. by spending additional hours studying, thinking and reading about the job in addition to any formal employer-required training
- chooses to work beyond the hours necessary to meet targets for reasons of personal motivation, e.g. additional commission.
On 23 November 2004, the European Commission brought infraction proceedings against the United Kingdom (C-484/04) before the European Court of Justice, arguing that the additional exemption, as introduced by the 1999 Regulations, "goes beyond the permitted boundaries of the derogation in Article 17(1), which applies only to workers whose working time as a whole is not measured or predetermined or can be determined by workers themselves."
In response to the European Commission's action, the Government has revoked the 1999 exemption, with effect from 6 April 2006, by means of the Working Time (Amendment) Regulations 2006.
In the supporting document, the DTI explains that the Government did not believe that Article 17(1) was intended to be restricted to those workers whose working time was wholly unmeasured. However, during the course of the infraction proceedings, the Commission has clarified that it accepts that autonomous workers may nevertheless perform some work that is measured provided that the nature of their activity as a whole is such that they decide themselves on the organisation of their working time. As a result, the Government believes that regulation 20(2) is not necessary for the proper implementation of the Working Time Directive and can be deleted.
Therefore, from 6 April 2006, only the original exemption applies. Only workers whose working time as a whole is not measured or predetermined or can be determined by the worker are exempt from the working time, night working and rest break provisions of the Working Time Regulations 1998.
...back to 9 February 2006
Sources:
Working Time (Amendment) Regulations 2006
Your Guide to The Working Time Regulations
|
For Payroll and Human Resource Professionals
