Defeated by Working Time Directive - please help

JHolmsby

Dear All,

I work full time 36 hours and have just been offered a weekend position working 16 hours Saturday and Sunday. I knew you could opt out of Working Time Directive, but didn't know anything about the requirement for a 24 hour rest once a week that you cannot opt out of. The HR dept at the new prospective employer picked up on this.

I've put in an urgent request to cut my full time role to 4 days a week, but I doubt this will be accepted.

Does anyone have any advice? Do you think maybe I could take an annual leave day once a week and days unpaid (rules permitting) to make up the rest?

NewShadow

You could apply for condensed hours in your full time job so you're not taking a pay cut, but to be honest I'm not sure how long i'd be able to carry that workload without burning out.

I've done 60+ hour weeks...but not indefinitely.

vroombroom

I've done it and wouldn't recommend it.

Do you need the new job? Is there no chance of overtime at your full time job instead?

Another_not_new_user

The Directive only applies to a single employer - not to two. If someone is daft enough to want to work their life away with multiple employer, then they are allowed to. Whether an employer wants an employee who is dog tired after working a full week already is another thing.

anamenottaken

AIUI all of someone's employed hours are counted in the 48 hours part of the WTD and hence each employer needs a signed opt-out even where their own part of the hours is nowhere near breaching 48.

Would not the breaks of 24hr/week or 48hr/fortnight technically have the same applicability?

Browny137

In my workplace we are told the EWTD only requires a 24 hour break every 12 days. I.e. you can work 12 days but must have the 13th off unless you opt out (although my workplace doesn't allow us to opt out).

Browny137

Also, as mentioned above, I wouldn't have thought this would apply the same for a second job.

ohreally

Another_not_new_user wrote: »

The Directive only applies to a single employer - not to two.

Do you have a reference for this?

Another_not_new_user

ohreally wrote: »

Do you have a reference for this?

Nothing in regulation 4 stipulates that multiple employments must be aggregated when calculating the average working hours over a week. The guidance (UK guidance) suggests that "if a worker is known to have a second job, an employer should ask the worker to consider signing an opt-out agreement if the total time worked is in excess of 48 hours a week. If a worker does not wish to sign an opt-out in this situation, the worker should consider reducing their hours to comply with the 48-hour limit."


And it's obviously the case - because there is also no law that says that an employee must declare other employment either. So how would an employer know if you didn't tell them. Employers cannot be legally responsible for something they cannot know.


Ask... consider

In other words it is not a requirement of the law, and there is no law (or case law) to say that multiple employers must aggregate hours. On the other hand, there is no law that says an employer must employ someone, and no law preventing employees from being stupid with their working hours either. Nor is there anything that says employers cannot cover their backs against potential legal action by employees by asking for an opt-out just in case, assuming they really wish to employ a dog-tired employee.

eamon

Employers don't generally like employees having second jobs for this reason

"You get injured at work at your secondary employer" who is then responsible?

The regs also state that multiple jobs are aggregated. From gov.uk
https://www.gov.uk/maximum-weekly-working-hours/calculating-your-working-hours
There is a private members bill currently working its way through parliment that proposes some changes but I doubt if it will survive but its worth a read.
http://services.parliament.uk/bills/2014-15/workingtimedirectivelimitation.html

ohreally

Another_not_new_user wrote: »

...

Sorry, missed this.

It is not uncommon for workers to have more than one job, potentially increasing the risks of fatigue, so the total hours worked should be added. There has been some debate on this point (NHS employers suggest that it is “not so clear” whether the limit applies just to an individual employment contract or across all of the worker’s employments) but government guidance is unambiguous: “If someone works for more than one employer, the amount of combined hours shouldn’t be more than 48 hours on average a week”.
The totalling-up approach is made explicit in the regulations on young workers (WTR regulation 5A): “If, on any day, or, as the case may be, during any week, a young worker is employed by more than one employer, his working time shall be determined … by aggregating the number of hours worked by him for each employer”.
It is the employer’s duty to take all reasonable steps to see that these limits are complied with, and they may contractually require employees to notify them if they have a second job. Previous government advice suggested that if a worker doesn’t tell the employer (and the employer has no reason to suspect) “it is extremely unlikely that the employer would be found not to have complied”.
Where a worker has two jobs, it will be important to consider all the details. Imperial College was held to be wrong to dismiss Ms Perry, a part-time midwife, who took sickness absence from her main job (which involved travelling between patients by bicycle) while continuing to work in her desk-based second job (Perry v Imperial College Healthcare NHS Trust UKEAT/0473/10/JOJ). Although she was required to ask permission before taking a second job this was aimed at preventing infringements of the Working Time Regulations and ensuring an employee off sick was not jeopardising their recovery, or “malingering”.
There was no evidence of either, and no reasonable employer would have dismissed Ms Perry in these circumstances, the EAT concluded. However, it did reduce her compensation by 30% on the basis that she was at fault for failing to tell Imperial about her second job.
DfT guidance on the RTR regulations says that the worker must inform employers in writing of the hours worked for another employer: Although most of the requirements for monitoring and keeping records lie with the employer, “both the mobile worker and the employer share the responsibility for complying with the Regulations”; and they are both potentially liable for prosecution “if the rules are systematically broken”.
In that scenario working time does not include work performed for employers who are not involved in road transport; however, time spent on bar work, for example, would count for compliance with the European Drivers’ Hours Rules.