Working Time Directive

NannyOgg

Hope someone can advise here…

My OH changed jobs about seven months ago. His new job sees him driving around the north west making site visits for various reasons. The hours are long but he was prepared to live with it as the overtime pay was reasonable...

To cut a long story short, the overtime structure was overhauled about six weeks after he started, and replaced with a new ‘bonus’ scheme which pays out depending on how many points are accumulated in a day. The points scale is based on the kind of jobs done, and, unfortunately, the bonus threshold is practically impossible to achieve due to the points scale itself and the way jobs are booked by the office (let’s just say that the coordinators don’t coordinate and leave it at that!).

So, after a first month’s salary where his overtime payment equated to an extra week’s pay, he’s now on pretty much flat rate for working - more often than not - twelve to fifteen hour days, five or six days a week (the overtime isn't optional, btw!). He’s pretty unhappy about it, as I’m sure you can imagine – although he has said he wouldn’t mind the hours so much if he was getting paid fairly for it.

I’m really worried about his health as he’s now not sleeping or eating properly, his moods are all over the place and he’s generally really miserable. And I’m seriously concerned about the mileage he’s clocking up in the process… I’d hate for him to fall asleep at the wheel!

We’ve checked the wording of his employment contract and there is a clause in there which seems to imply he’s opted out of the Working Time Directive by signing the contract :mad:

My question is, how does he go about opting back in, and what would be the likely implications… I don’t think they can sack him for it, can they

Any advice gratefully received!

Kimitatsu

Hiya NannyOgg

I dont think you can without rewriting your contract. As one of the terms of the contract is that you have opted out of the WTD you would have to get a new contract drawn up whereby your employer is happy for you to be bound by those rules.

If they have put the clause in there in the first place then I cant see them drawing up new contracts for everyone to opt back in.

However if the threshold is impossible due to the co-ordinators not doing their job then this needs to be raised with the managers because they are an inefficient workforce (I had the same with one of my co-ordinators, I would have needed a helicopter to be where i needed to be in the timescales :rolleyes:). Also under the guise of health and safety you are right to raise the concerns, as if the guys are tired then mistakes will happen and accidents occur - not good if these spark an HSE investigation

Thats how I would approach it - in the best interests of work patterns

[Deleted User]

No person can be forced to sign an opt out. He can give notice to his employer to end the opt out agreement. This must be done in writing, the employer can state that a min of 7 days notice but no more than 3 months notice must be given. After the notice period has lapsed the employer can not make the employee work more than 48 hours a week averaged over a 17 week period.
If he has any problems from the employer accepting his notice to end his opt out agreement he can make an official complaint under working time directives. Where he would complain to depends on the industry he works in, though from the sound of it in this case he would be complaining to his local authority.
The health and safety executive only have certain sectors under their jurisdiction you see. I used to work for Pay and Work Rights helpline and we used to give advice on working time issues all the time. This problem unfortunately is not an uncommon one.

ceridwen

Basically - his employer has pulled a fast one.

Good luck in getting it sorted out.

NannyOgg

his employer has pulled a fast one

I think 'shafted' is the term most frequently used chez Ogg :rotfl:

Hard lesson learned: read all T&C's thoroughly in future

As long as he's within his rights to do so, we're going to write a letter opting him back in, effective from whenever the notice period is...

Doubtless it won't go down well with management but to them!

robredz

Without being negative, it may be a good thing if he had a quiet word with colleagues, to see how the system sits with them, as it may be a case of the employer saying that there are plenty of people in the jobcentre who would do it. if he doesn't like it. Just tread carefully imho.

alunharford

Kimitatsu wrote: »

Hiya NannyOgg

I dont think you can without rewriting your contract. As one of the terms of the contract is that you have opted out of the WTD you would have to get a new contract drawn up whereby your employer is happy for you to be bound by those rules.

Not true. While you can opt out of the working time regulations, an employment contract can't require you to opt out. You can withdraw your consent giving the notice specified in the contract. If there was no notice period specified, it's 1 week.

paulwf

There are 2 issues here: being fairly paid for the overtime and doing the overtime itself. As you have stated OP the overtime is making your husband unwell so stop trying to do it. The pay restructuring might have been the push you needed make you realise it isn't worth doing if you are there for the long haul.

First of all he needs to highlight ways of delegating tasks and working smarter rather than harder if possible. I don't have enough details to give good examples but there are usually ways to cut the workload as long as you are prepared to take a step back and not do everything yourself.

The next stage is to be firm, if it gets to 6pm on a Friday tidy up any loose ends and go home. The job will still get done, either someone else can finish it or it will still be there on Monday morning. It is easy to get in a culture of staying on and putting in more and more hours, in the long run that doesn't help the employee or the employer, you have to put your foot down and look after yourself.

londondulwich

Here is a link to the working time regulations (WTR):

http://www.opsi.gov.uk/si/si1998/19981833.htm

Section 10 and section 11 relate to daily and weekly rest periods.

Section 10(1) says that an adult worker must have 11 consecutive hours rest every day.

This means that your husband should not work more than 13 hours in any one day.

Section 11(1) says that a worker should be given 48 hours, rest for every 5 days worked, or 96 hours rest for every 10 days worked non stop.

This means that your husband should not be working more than 65 hours a week or 130 hours over two weeks.

13 hours x 5 days = 65
13 hours x 10 days = 130

These figures should be worked out as an average over 17 weeks (3 months) unless he's been there less than 3 months.

If your husband is working between 12-15 hours a day 6 days a week his employer is in breach of the WTR.

londondulwich

I've just noticed the last paragraph of your post.

The employer cannot get the agreement of the employee by stealth. The employer cannot force the employee to opt out as a condition of the employment and is restricted to having to wait a month before proposing the opt out.

jim_walton

I think you will find that by doing it you have accepted it... It's called custom and practice and I will be very interested to hear everyones opinion on this....