Working Time General

WORKING TIME REGULATIONS FREQUENTLY ASKED QUESTIONS AS AT 15 MAY 2007 Hampshire Fire and Rescue Service

WORKING TIME GENERAL

Q1 What is Working Time?

A Working Time is defined as anytime that you are working and carrying out activities or duties for an employer. This includes travel where it is part of your job, on-call time when you are actually working or at a place of work and authorised job training.

Working time does not include routine travel between home and work, time at home on call when a worker is not actually working, evening classes or day release courses where they are not job related or authorised. The time counted as working will usually be the subject of prior agreement between the worker and their line manager. Excess travel time to travel from home to a meeting somewhere other than the normal workplace counts as working time.

Meal breaks are not classed as working time for Green Book employees. However, it is recognised that the Grey Book class meal breaks as working time, so they should be counted as such. Any paid work undertaken at home that has been previously agreed with the workers Line Manager would also count as working time.

If in doubt check with the line Manager.

Q2 What is the minimum number of hours rest per week required by the Regulations?

A For Adult Workers

 Food break (if work over 6 hours) – 20 minutes unpaid. (NB: Grey Book Wholetime get 1 hour paid lunch each day).  Daily rest break – 11 hours each day.  Weekly rest break – 24 hours every 7 days.

Q3 What is the purpose of the Working Time Regulations?

A They were adopted as a health and safety measure, as it had become apparent that working for too long, without sufficient rest periods, was damaging to workers health.

It provides legislative protection for worker, eg, the driver who fell asleep and drove onto a railway line causing a major train crash a few years ago.

Q4 Can HFRS or employers vary the application of the Working Time Regulations?

A No it’s the law. HFRS with the Trade Union representatives have, after correspondence with the Health and Safety Executive, tried to take an approach which: - 2 -

 Meets the regulations.  Protects Employees without being overly prescriptive outside of regulations.  Supports the Service’s IRMP.

Q5 What is the maximum number of hours rest per day required by the Regulations?

A An adult worker should have 11 hours rest per day (uninterrupted) unless they are an excepted post, eg. where there is a need for:

 Continuity of service.  Foreseeable surge of activity.  Unusual circumstances, exceptional events and accidents.  Shift workers.

HOWEVER, if the worker does not get 11 hours due to the above THEY MUST be allowed to take compensatory rest within the 7 days or a maximum of 14 days.

If a worker has been say called out during the night they should not come into work until they feel fit and safe to do so or they have had their full rest.

Note: HFRS or the Primary Employer should be advised and may still require the worker to complete their primary role hours in full once they are at work.

Q6 Do rest breaks have to be taken in one go or staged?

A They ideally need to be taken each day. However, depending on the circumstances, eg, if excepted (see Q5) then they can be taken as compensatory rest/averaged over the next 7 days or at a maximum of 14 days. The worker must receive all their rest entitlements within the reference period.

Q7 What are the Working Time Regulations for Working Time?

A No Opt Out Signed Maximum average of 48 hours a week.

Opt Out Signed Maximum average of 60 hours (in line with forthcoming European Union Directive). All over a 17 week reference period.

Q8 What is the maximum standby/cover I can provide?

A 144 hours per week this is to allow the 24 hour rest break a week to be taken from HFRS employment.

Q9 What if I want to work more than 48 hours a week?

A Workers can choose to work more than the maximum 48 hour average working week. If a worker does choose to work beyond 48 hours, either with HFRS and/or another employer, they will be required to complete an opt out agreement. The worker will need to complete two copies one of which should be retained as a personal record, returning the second copy to the line manager who will forward it to the HR Department at Service Headquarters. - 3 -

By opting out a worker can elect to exceed the maximum average 48 hour working week. However, even if opted out of this section of the Regulations, the worker is still required by Law to take the required rest breaks. In line with the Regulations and HFRS agreed Policy the maximum ‘on call’ hours you can provide a week is 144 and the maximum actual working time included in the ‘on call’ time is 60 hours a week over the Service’s agreed reference period of 17 weeks.

If a worker opts out, this can be for either an indefinite or definite period. If it is chosen to opt out for an indefinite period HFRS will contact the worker periodically to see if they wish to remain opted out. The opt out may be terminated at any time by providing seven days’ written notice of a wish to do so.

If a worker works for another employer outside HFRS and choose to opt out, they must also complete an opt out agreement with that employer.

It is important to remember that if a worker chooses to opt out they must still adopt a sensible approach to their working hours. As an employee has a duty of care towards themselves, their employer and others whilst at work, and must act accordingly.

Line managers will review any requests for additional contracts with HFRS or outside work with employees as these change, or annually at your Performance Development Review.

Q10 What is the position for Employees with multiple contracts in HFRS? A As long as all your HFRS contracts and outside employment working time do not exceed either 48 hours (no opt out signed) or 60 hours (opt out signed) and 144 hours standby/cover (inclusive of the 48 or 60 working hours), then you can have as many contracts as you like.

Q11 What do you mean by average? A The Regulations set a default “Reference” Period of 17 weeks over which Working Time can be averaged. This means you can work some weeks more than the 48 or 60 hours as long as overall it averages out. However, you cannot work flat out for 14 weeks then take the last 3 weeks off that would be unsafe.

Q12 What if my other Employer(s) ask me about my working hours with HFRS? A You should supply your employer with your average weekly working hours over a period of 17 weeks (the standard reference period). Your line manager can assist you if requested.

Q13 What if I am working over 60 hours a week on Average? A You need to raise this with your Line Manager as soon as possible. You have a responsibility under Health and Safety and the Working Time Regulations to monitor your hours yourself. Your Line Manager will discuss options with an aim to take mutually agreed action to reduce your overall working time to under 60 hours per week on average.

Q14 What if I’m on call (eg Retained, Workshops, Media, or FDS) and available for duty? A Time on stand-by, when you are not actually called out or working, is not classed as working time. However, if whilst available for duty, you are contacted/called out for any work-related reason, this is regarded as working time and must be counted as such from the time you receive the call/message until you have booked off.

Retained employees should count working time from the moment they respond to their alerter until they sign off. - 4 -

Q15 Retained Duty System (RDS) is it different for me?

A No not really. The Working Time Regulations mean that ALL working time with whatever employer(s) or contracts is added together. The only difference might be with other standby (this depends on where it is done, ie, in the workplace or at home). RDS standby (at home) is NOT counted as working time until you are actually called out. Your working time with HFRS starts from the moment you respond to your alerter and does not end until you sign off. You must still have all the rest breaks the regulations provide for.

Q16 If an RDS employee responds from their primary employment and does not need to make the time up, does the RDS time count as long as it does not go over their normal Wholetime employment hours?

A It depends.

 If the employee is not subject to the Road Transport (Working Time) Regulations then probably not. If they are, then the RDS time will be counted as working time if during their required rest breaks which must be unbroken.

Q17 Does attending (whether paid or not) the station for visits from cubs, etc, attendance for meetings, training at weekends at stations or other venues or undertaking Home Fire Safety Visits count as Working Time?

A If HFRS require this/sanction it, Yes.

MONITORING AND RECORDING

Q18 What if I work for another employer outside of the Service or want to?

A Employees who are considering taking on additional contracts within or external to HFRS are required to seek permission, in writing, from the Service to do so, and where permission is given will need to sign a separate opt out agreement.

If a worker for another employer outside of the Service then they must declare this to the Service, including the hours of employment worked. This is not because the Service wants to control, or restrict what a person can do in their own time, but to ensure health, safety and wellbeing of the worker as well as to ensure its own health and safety obligations are being met. This will be in line with Service Order 1/2/20 ‘Outside Employment’.

People who are self employed do not currently fall within the Working Time Regulations. However, all employees have a duty under the Health and Safety at Work Act 1974 to look after themselves and others. Also if under a HFRS contract of employment a worker must ensure that they work within the Regulations, and they must not compromise their own health, safety and welfare, or that of others.

Q19 Are there any monitoring requirements?

A Regulation 9 of the WTR says: Employees must keep ‘adequate’ records to show compliance with the: - 5 -

 weekly working time limits  night working time limits  night worker health assessment requirements

They must be kept for 2 years.

Depending on circumstances, employers may need to keep records concerning:

 anyone who may or does work beyond 48 hours each week on a regular basis  individual agreement(s) that a person will work beyond 48 hours + actual hours worked Reg. 4(iii).  any collective agreements disapplying any of the Regulations  workers who work night shifts  any special agreements about what constitutes a night shift  any workers who work nights which are hazardous to health  offered/carried out health/capacities assessments for employees/workers.

The Regulations do not stipulate what form, ‘adequate’ records should take. It is up to the employer to provide records to show that they are complying with the relevant Regulations. Existing records (maintained for other purposes) may be adequate. For example, the DTI guidance points out that pay records may suffice. Other types of existing time records such as time sheets may also be appropriate.

Key Note

There is no general requirement to record actual working hours of all workers so employers do not have to introduce a specific working-time monitoring system under the Regulations.

Q20 How will my working hours be recorded or monitored?

A Line managers will monitor working hours within HFRS and take into account the information provided by workers regarding any other employment held. If this changes for any reason the worker must notify their line manager so their working hours can be reviewed. The workers working hours will also be annually reviewed through the Personal Development Review System.

Q21 Are your working hours causing you a problem?

A If a worker is working long hours and is struggling to reduce their hours, or are unsure if they are working too many hours they should speak to their line manager who will help to see how any issues can be resolved. It is important that the worker personally reviews their working hours as research, litigation, deaths and accidents show long working hours are not beneficial to anyone.

SELF EMPLOYED

Q22 Does the WTD apply to self employed?

A It depends. - 6 -

 Genuinely self employed persons do not fall within this definition as they are considered to be sufficiently independent to look after themselves. The fact that someone personally performs work or services for another party does not automatically mean they are a worker (case Bacica v Muir (2006) IRLR 35).  If they are a driver they may be covered by the Road Transport (Working Time) Regulations. If they are not covered currently, they will be in March 2009.

Q23 If self employed could they work longer than other ‘employed’ RDS Firefighters?

A Technically yes. However, HFRS need to ensure we have workers ‘fit for role’ and HFRS and workers have a personal duty under the Health and Safety at Work Act and a duty to other employees/workers/individuals.

TRADE UNIONS

Q24 What do the Trade Unions say about this?

A Trade Union Representatives have worked as part of the Working Time Group to develop and implement HFRS’s approach. They have recognised that the Service has had no choice in this and must implement the Regulations fully.

PENALTIES

Q25 What is the penalty if I don’t comply with the Regulations?

A Potential death of yourself, others, your family or friends, perhaps by falling asleep at the wheel. OR it could be an accident, error affecting you or others or even longer term ill health issues. It could even be relationship strains due to over work leading to fatigue and potentially burnout.

Be honest with yourself you do know the signs don’t ignore them before they are too late.

Note: Any claim by you or your family due to your death or injury could well be reduced if you have contributed to the situation.

Q26 What if I work more hours than I declare to HFRS or other employers I work for?

A You are breaching the law but more importantly you are putting yourself, family, colleagues and others you may come into contact with in danger. There are many high profile cases of accidents caused by long hours working. This and research shows long hours working is detrimental to your health, is fatiguing and you are more likely to have accidents and/or make errors.

Q27 What is the penalty if HFRS does not comply?

A An employer who fails to comply with any of the requirements related to: - 48 hour limits - night work limits - health assessments shall be guilty of an offence under the Health and Safety at Work etc Act 1974.

The HSE enforcement role includes powers to inspect records.

An employer found guilty of an offence will be subject to fines and/or imprisonment in accordance with current health and safety legislation. - 7 -

These provisions will be relevant to all employers, who may be required to demonstrate compliance with these requirements.

As noted above, any records of steps which have been taking to comply with these Regulations should be kept.

Where specific records are not required, employers may need to generally demonstrate that they are complying with these provisions.

For example, by providing:

 as assessment of those senior managers excluded by virtue of the ‘unmeasured working hours’ provisions  evidence that all working arrangements such as standard contractual hours are within the weekly time limits  evidence that they do not have workers who undertake night work for the purposes of these Regulations.

The Health and Safety Executive and local authorities have been given powers to enforce the provisions of these Regulations.

If a summary offence is committed, the employer may be fined up to £20,000 and face 6 months’ imprisonment. If it is an indictable offence, there is no ceiling on the fine, and there is a possible prison sentence of up to two years.

Q28 How many years imprisonment could a director (probably Chief Officer and/or members of Service Management Team) face for breach of the Regulations?

A 2 years.

Q29 What is the maximum fine could be imposedon an organisation for non-compliance with the Regulations?

A £20,000 in a magistrates court.

Unlimited in a crown court.

NIGHT WORKERS

Q30 During which hours must a worker work to be classed as a night worker?

A 2300 hours and 0600 hours.

2200 hours and 0600 hours for young workers.

Q31 What additional free entitlement does a night worker have?

A Annual health assessment if requested by worker. - 8 -

YOUNG WORKERS

Q32 What age groups are defined as ‘young workers’?

A 15 – 17 inclusive. The Regulations provide for differences in Working Time and rest breaks for this group as they are more at risk than an adult worker.

ROAD TRANSPORT (WORKING TIME) REGULATIONS – DRIVERS

Q33 What if I am a Driver in outside (if HFRS) employment and covered by the Road Transport (Working Time) Regulations?

A It is unlikely if that is the case that you can legally meet the requirement of the Road Transport (Working Time) Regulations and work in any capacity for HFRS. You need to discuss your situation with your Line Manager as soon as possible.

Q34 Are all Emergency Fire Appliance Drivers subject to the ‘Drivers Hours and Tacograph Rules for Goods Vehicles Road Transport (Working Time) Regulations?

A No. Wholetime Firefighters are not. Retained were but an exception was subsequently made. However an RDS employee who is an LGV driver / subject to Regulations needing tachograph monitoring in their primary / other jobs may well breach those Regulations in their civilian job if they drive for HFRS without the legal rest before they re-drive in their primary / other job(s). Therefore RDS will be a higher risk category under the Regulations. It is unlikely any worker subject to the Road Transport (Working Time) Regulations can be employed in any capacity by HFRS.

FURTHER INFORMATION

If a worker would like to find out more about the Working Time Regulations then visit the HFRS or HRFU websites. You will find answers to frequently asked questions as well as a quiz to test your knowledge of the Regulations.

For further information please contact the Health and Safety Adviser.

Q35 Where is the Service Policy on Working Time?

A Contained in Service Order 1/21 which includes a consultative agreement setting out fully the Service’s policy. Also in the Outside Employment Service Order 1/2/20 and documentation on the website including a Manager’s toolkit.

Q36 Why has HFRS taken so long to implement this?

A Well HFRS have in the main encouraged workers to work sensibly and when you get into individual situations few workers are likely to fall outside of the Regulations and the new HFRS policy. However, what HFRS has not done until now is to formalise and energetically educate and communicate the Regulations in a co-ordinated approach.

SUSAN TEMPLETON DEPUTY HEAD OF HUMAN RESOURCES

SMT/selP/G/WorkingTimeFAQs/15 May 2007