Weekly Working Time Limits (Regulation 4)

The maximum of an average 48 hours weekly working time is to be enforced by the Health and Safety Executive. There is no entitlement which workers can enforce in a tribunal, although workers could bring a claim for damages if they suffer loss or injury because of a breach of the limit.

The 48 hour limit is an average over 17 weeks (26 weeks for the special cases in Regulation 19). It is welcome that for new employees the average must be calculated over actual weeks worked, so that the average at any time in the first 17 weeks cannot exceed 48 hours per week.

The effectiveness of the weekly maximum is substantially undermined by the Government's decision to take up the individual opt out inserted by the previous government. This means that individual employees may agree in writing to work in excess of 48 hours: this is inconsistent with viewing this as a health and safety limit to be enforced by the HSE.

Workers are not given adequate safeguards against duress or inducements. They are only given rights if they suffer detriment for refusing to sign. There is no requirement to give a copy of the agreement to the worker, nor any requirement that the worker receive independent advice.

A worker who has signed away his rights in this way must give seven days' notice of withdrawing agreement. However, agreements can extend this notice requirement to three months. This is absurd and oppressive: three month notice provisions would become the norm in agreements, locking employees in for an unacceptable period.

The Government proposes that records on those agreeing to work in excess of 48 hours should be made available to the HSE. There is no provision enabling inspection by workers or their representatives. Workers should also be given a right to enforce in tribunals their compensatory rest where the maximum weekly working time limit is modified or excluded.

Night work (Regulations 5 and 6) This is also introduced as a limit to be enforced by the HSE, with the only individual enforcement through claims for damages if injury or loss is suffered through a breach of the limits. The obligation on the employer should be absolute: not merely to take 'all reasonable steps' as specified in the Regulations.

The averaging period is set at 17 weeks, although once again it accrues weekly for new workers.

There are two substantive limits for night workers: an average of 8 hours of normal working hours in each 24 for all night workers, and an absolute maximum of 8 hours in any 24 hour period for those engaged in special hazards or work involving heavy physical or mental strain.

Night time is between 11pm and 6am. A night worker is someone who works at least three hours of his daily working time at night 'as a normal course', which the Government defines restrictively as meaning on a majority of days worked.

The proposals on the maximum average normal working hours appear to allow employers to get around the restriction simply by paying premium rates for hours in excess of eight. That cannot be right. Work rosters should be the key.

There is a major loophole for workers engaged on risky or onerous work. If there is no agreement which defines the work falling in that category, and no risk assessment on that issue, those workers are deprived of the specific protection of the Regulations. This cannot be an adequate implementation of the Directive.

The provisions on health assessments for night workers are inadequate as they do not provide for the intervals between assessments, and appear to permit so-called 'health assessments' not carried out by a qualified medical practitioner.

The draft Regulations fail to give a worker an enforceable right to insist on a transfer to day work for health reasons. The proposals do not adequately provide for specific health protection for night and shift workers.