Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
The Regulations apply to “workers” which includes employees, temporary workers and freelancers, but not the self-employed genuinely pursuing a business activity on their own account.
Rest periods and breaks
The Regulations provide workers with the following rest periods and breaks unless they are excluded workers or exempt:
- 11 hours uninterrupted rest per day (“daily rest period”);
- 24 hours uninterrupted rest per week or 48 hours uninterrupted rest per fortnight (“weekly rest period”); and
- Rest breaks at work – a rest break of 20 minutes when working more than 6 hours per day.
Should workers be exempt, “compensatory rest” will usually have to be given.
Working time for the purposes of the Regulations, and the provision of the relevant rest periods and breaks is defined as “Any period during which the worker is: (i) working; (ii) carrying out his duties; and (iii) at the employer's disposal.” Employers must meet all three criteria.
Based on the above criteria and case law, time usually included as working time includes:
- Time spent waiting or "on call" at the workplace or another place chosen by the employer – case law has made it clear that time spent “on call” at the place of work counts as “working time”, even if the worker is permitted to sleep.
- Responding to telephone calls while on call (at any location).
- Travel time where travel is part of the job. This can include travelling to the first appointment of the day, and returning home from the last appointment of the day, for mobile workers (see our briefing here.)
The following activities will not normally be considered working time because the worker does not fulfil one or more of the criteria of working, carrying out their duties, or being at the employer's disposal:
- Time spent "on call" if the worker is not required to be in the workplace unless a home is situated at the workplace and the employee is required to stay there whilst on call.
- Travelling to the workplace (unless a peripatetic worker as explained above).
- Attending work-related social events.
- Working from home voluntarily and/or responding to telephone calls voluntarily out of hours.
Collective or workforce agreements
These can be used to exclude the obligation to provide rest breaks and rest periods. However, where these arrangements are in place an equivalent period of compensatory rest must be provided – see below.
We consider that entering a collective workforce agreement is the most effective way of achieving compliance.
The provisions entitling workers to 11 hours rest per day and 24 hours rest per week (or 48 hours per fortnight) do not apply in relation to either of the following:
- Shift workers when they change shift and cannot take a daily or weekly rest period between the end of one shift and the start of the next.
- Workers whose duties involve periods of work split up over the day, such as cleaning or catering staff working split shifts.
The case law suggests that the exemptions for shift workers only applies where the shift worker “cannot” take a rest period, and producing shift patents that do not include the required rest breaks, would not in itself trigger the exemption. It is therefore hard to see how this exemption would apply to the social care and housing sector.
Unmeasured work exemption
The obligations to give the 20 minutes rest break, the daily rest period of 11 hours and the weekly rest period (24 hours rest per week or 48 hours per fortnight) do not apply to those workers whose working time is not, “on account of the specific characteristics of the work, measured or pre-determined or can be determined by the worker”. It is, unfortunately, not certain whether this does apply to carers in the social care sector or maintenance staff in the housing sector undertaking a sleep-ins or on-call. Our view is that it is unlikely to apply on the basis that the amount of working time is fixed as being the length of the on-call or sleep-in – the time is therefore measured and not determined by the worker.
Continuity of service exemption
Where workers’ activities involve the need for continuity of service, then the obligations to provide rest breaks and rest periods do not apply but an equivalent period of compensatory rest should be provided immediately after the end of the period of work.
Unfortunately, the leading case of Gallagher v Alpha Catering Services made clear that it is the activities of the individual worker that must be continuous not the employer’s activities. It would seem that care and housing providers would find it hard to satisfy this test as it would always be a possibility that they could employ another member of staff to provide cover – albeit this is sure to make them uncompetitive. We consider it may be possible to rely on the exemption regarding the 20 minutes rest break, but it would be much harder to rely on the continuity of service exemption in respect of the 11 hours daily rest break.
It is worth noting that workers are not obliged to take rest breaks, and an employer simply must ensure that workers can take their rest breaks if they wish. Workers can elect to work through a rest break, provided they do not risk their own or others' health or safety. However, there may be a fine line between what is voluntary and what is required and given the Advocate General's Opinion in Commission v UK, prudent employers should not knowingly allow or encourage workers to regularly forgo their rest periods or rest breaks.
Compensatory Rest Periods
Where one of the above exemptions applies and a worker is required to work during a period that would otherwise have been a rest period or rest break, the employer "shall wherever possible allow [the worker] to take an equivalent period of compensatory rest, and in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, [the] employer shall afford [the worker] such protection as may be appropriate in order to safeguard the worker's health and safety."
What is the correct amount of compensatory rest?
The prevailing view is that compensatory rest should equal the length of the interruptions to the period of rest and not the entirety of that period. However, this is an area where complete clarity is not attainable as the entitlement to rest under the WTR is to uninterrupted rest.
Does compensatory rest need to be given immediately?
Unfortunately, the law in relation to whether compensatory rest needs to be given immediately is not clear, although the leading ECJ case suggests that compensatory rest periods must follow on immediately from the working time which they are supposed to counteract.
Enforcement and penalties
There is a wide range of sanctions available against an employer under the Regulations, and these include:
- Agreements being rendered unenforceable where incorrectly entered into;
- A potentially unlimited criminal fine;
- "Improvement" or "prohibition" notices issued by the HSE; and
- Compensation for workers.
For more information
We have advised a significant number of clients in both the social care sector and the housing sector on structuring their live-in care, sleep-in and on-call arrangements to ensure compliance.
If you require assistance with your working arrangements, please get in touch with your usual contact in our Employment Team or speak to Anna Dabek. You can find out more about our employment work on our website.
As the end of 2020 beckons, we take a look at what progress the Sterling market has made in its preparations for the end of the London Interbank Offered Rate (LIBOR) on 31 December 2021.
Finally, there is a glimmer of hope that perhaps the Covid-19 pandemic could be reaching its end.
For part 2 in this series of short podcasts, Chris Lloyd-Smith interviews senior associate Lisa Whitehouse on how she has been coping during these unprecedented times.
Delayed since Spring 2020 as the Government tackled the Covid-19 crisis, Tuesday 17 November saw the publication of the Social Housing White Paper, setting out the future regulation of the sector
In this ebriefing, we examine how the duty holder regime will apply to social housing providers with existing HRRBs in their housing stock.
Following Katherine's "heads up" last week, the Government has now confirmed that for claim periods post 1 December, employers will not be able to claim for employees who are serving their notice
For part 1 in this series of short podcasts, Chris Lloyd-Smith interviews solicitor Puja Desai on how she has been coping during these unprecedented times.
Over 100 trainees and future trainees from Birmingham joined the BTSS for a webinar to address concerns around training remotely and qualifying during a possible recession.
Anthony Collins Solicitors has supported Birmingham-based Complete Care Holdings in its acquisition of Amegreen Complex Homecare Ltd.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.