What is Working Time?

The Government takes the option of repeating the definition in the Directive, so that working time is a period when a worker is 'working, at his employer's disposal and carrying out his activity or duties'. This may be the most obvious approach, but it does leave a number of questions unanswered.

The biggest uncertainty covers time spent available to work, but not actually carrying out a work-related activity. Obvious examples are zero hours contracts or periods spent 'on-call'.

The Government agrees that these may amount to 'working time' depending on the circumstances, but makes no reference to this in the Regulations, leaving it for the courts to decide. This is an unsatisfactory approach which leads to uncertainty and litigation.

The same comments apply to time spent on trade union activities or duties, which should be regarded as working time, but is not dealt with in the Regulations. The Government's suggestion to achieve greater clarity in practice is to allow employers and workers' representatives to agree that periods should be regarded as working time. This could cover on call, zero hours, trade union activities or other periods.

Who is covered?

Workers (Regulation 1) It is welcome that the Government proposes that the rights under the Directives should apply to 'workers', adopting the broader definition which will also apply to minimum wage legislation. This reduces the risk of avoidance by employers setting up bogus 'self-employment' arrangements to get round the Regulations.

All those who provide their services personally will be covered, which will include freelance workers. The only exception is those who are providing their services as a business to a customer or client.

There is still an unwelcome emphasis on the requirement for a contract between the parties, when it should be sufficient that there is a relationship under which the service is provided. The onus should be on the employer to show that any person providing personal services should not be regarded as a worker.

Young workers are those over compulsory school age, but under 18. 
Excluded sectors (Regulation 16) The proposed Regulations exclude the same sectors as are excluded by the Directive. These are transport (air, rail, road, sea, inland waterway, lake), sea fishing and other work at sea. These will be covered by new proposals to be put forward by the European Commission, which has issued a Consultation Paper covering those sectors.

The Government correctly recognises that it is the activities of those sectors which are covered, not merely employment in a location where those activities are carried out. The Conservatives believed that anyone who worked at a transport location was excluded whatever their activity.

This would have meant that someone employed in a shop at an airport would be excluded from the legislation. Labour disagrees and also points out that workers at docks and harbours would not be excluded, nor would those who transport goods within buildings, for example fork-lift truck drivers. This guidance is welcome, but it has no legal effect and should be spelt out in the Regulations.

The other excluded sectors are junior doctors and also armed forces, police or other civil protection services, but only in relation to specific activities which inevitably conflict with the working time requirements: a strict test.