September 30, 2020
Are You Keeping a Close Eye on Working Time?
In the current climate, many employees are working more flexibly than before the COVID-19 pandemic. But it’s important to keep a close eye on the implications of such flexibility when it comes to assessing working time.
Keep reading as we share a recent case of unfair constructive dismissal over working time. We also answer: Is travelling considered working time? How is the maximum 48-hour working week assessed?
A Case of Unfair Constructive Dismissal Over Working Time
“If I could turn back time… If I could find a way… I’d take back the words that hurt you and you’d stay…”
Cher’s classic lyrics are ones Gary Robinson, Managing Director of Aura Gas, may well have sung to ex-employee Thomas Holloway. He resigned and successfully claimed constructive unfair dismissal over an issue about working time.
In total, an employment tribunal awarded Holloway £12,000 against Aura for a fundamental breach of the implied term of trust and confidence which amounted to his wrongful and unfair constructive dismissal.
As a gas engineer, Holloway would routinely travel to local assignments within his contractual 45 hour week. Most jobs would involve less than 30 minutes travel. Ultimately, he found himself travelling extensive distances. Sometimes he would travel five hours per day as assignments became more remote. Such time also became additional to his contractual hours.
When Holloway queried the arrangements, he was told that the company did not pay for the first and last hour of travel and that this was industry standard. Relationships worsened and, ultimately, he submitted a grievance and appealed when it was turned down. Two days later he resigned citing the excessive hours and the risk that they placed on his health and safety. This, in turn, led to the submission of an employment tribunal case and the subsequent £12,000 award in his favour.
Is Travelling Considered Working Time?
Yes. Increasingly, time spent travelling is considered working time. There have been a number of binding judgements. Unless your journey is simply to and from your workplace at the start and end of the working day, it is almost invariably classed as working time. As staff numbers reduce and remote working becomes increasingly normal, it’s important not to overlook the implications for hours of work.
Even if terms and conditions do not provide additional pay for working extra hours, such time is still working time. It still counts towards the maximum 48-hour working week. Staff would need to “opt out” of this statutory provision. But why would they do so if they receive no payment in consideration?
Opting out needs to be clearly voluntary. There must be no pressure to do it. And staff can opt back in without penalty by giving notice to do so. It is unlawful to penalise them in any way if they do so.
How is the Maximum 48-hour Week Assessed?
The 48 hour week is normally assessed as an average over a 17 week period. Don’t forget, all working hours count – even if unpaid. So, if your staff have a 40 hour contract but routinely travel between jobs for an extra two hours per day they are actually working 50 hours. Any unpaid hours may also have an impact for the assessment of National Minimum Wage.
Plus, they would also need to opt out of the Working Time Regulations without any pressure. They should sign a separate agreement about this. Don’t include it in their written terms as this would be seen as pressuring them to agree.
Some jobs, such as heavy goods drivers, are covered by other regulations which means they cannot opt out in any event. Similarly, working through rest breaks or taking clients for lunch is also likely to be classed as working time. Any situation in which staff are at their employer’s disposal in real terms will normally be working time.
As you become more inventive in order to address the dilemmas of COVID-19, don’t lose sight of other problems that your potential flexible working solutions may present.
About the author
Mike Fitzsimmons
About the author
Mike Fitzsimmons
Mike is a Senior HR Consultant within the Moorepay Policy Team. He is responsible for the developing of employment documentation and is an Employment law advisor. With over 30 years of senior management and HR experience, Mike has managed teams of between 30 and 100 employees and is familiar with all the issues that employing people brings. He has also served as a non-executive director on the Boards of several social enterprises and undertook a five year tour of duty as Executive Chair of a £30+ million annual turnover Government agency.
Guides
Employment Law Guide
Do you know when the latest complex legislation changes come into effect? And are you…
View Resource
