Working Time in the Security Industry

How is Working Time Defined?

You may think it is straightforward to define working time but you would be wrong. Almost since its inception, the European Working Time Directive (the backbone of our Working Time Regulations) has faced a multitude of challenges and interpretations throughout Europe – and significantly in the security industry and care sector within the UK.

A majority of  workers can expect a regular working week of not more than an average of 48 hours. The UK fought hard to preserve its right for workers to agree to “opt out” and work potentially longer hours. However, there are other criteria that normally apply.

• If six or more hours are worked continuously, there should be an uninterrupted rest break of at least 20 minutes, paid or unpaid, away from the work-station.
• There should be at least an 11 hour continuous break between two periods of work in each 24 hour period.
• There should be an uninterrupted rest period of at least 24 hours in each seven-day period.

Issues for Employers

There are problems in some industries however, such as security.  The Working Time Regulations attempted to recognise this. For instance, Regulation 21 provided a limited exclusion for workers involved in security where a permanent presence is required to protect property. Likewise, those involved in providing treatment or care in residential establishments were similarly subject to a limited exclusion.

These provisions were recently challenged in Hughes v Corps of Commissionaires Management Ltd. Mr Hughes brought a claim that he had been denied his rest breaks because they were sometimes interrupted. The Corps of Commissionaires argued that they had done more than they were obliged to do in granting a fresh break in such circumstances, thus meeting the Working Time Regulations’ requirement of a period of compensatory rest. The Employment Appeal Tribunal agreed with the Corps of Commissionaires. However, there are plenty of other issues where the situation is still far from clear.

Issues for Employees

For those who sleep on or near their employer’s premises, the situation remains very muddy as does the whole issue of being “on call”. The matter has been under consideration at European level for some years now without satisfactory resolution. Currently, a further period of consultation is under way but with no guarantee of urgent resolution.

In the meantime, and despite government websites such as ‘DirectGov’ suggesting that such periods are not working time, successive court and Employment Appeal Tribunal cases seem to suggest that they are. If the reference that is at European level succeeds, there may be a new definition of “active on-call time” and “inactive on-call time” and hopefully this will resolve some issues. In the meantime however, employers should be warned that some expensive settlements are running through the legal process where employers have, inadvertently, contravened the judicial view of the current Working Time Regulations/National Minimum Wage.