Terms & Conditions of Contract (Working Time Regulations)

[dragzb]

I'm probably worrying over nothing but can my company put this clause into everyone's terms and conditions of contract?

Hours of Work

Normal hours of work at 40 hours per week commencing 08:00am to 5:00pm Monday to Friday inclusive of one hour for lunch. You are expected to be ready for work punctually in line with your contracted hours. Should the situation demand it, a reasonable amount of overtime may be expected to be worked for the efficient conduct of the Company’s business. No payment will be made for overtime hours worked except with written approval from your immediate supervisor, of such payment, which will be at the standard rate.

The 48 hour limit on average weekly working time set out in the Working Time Regulations 1998 shall not apply to your employment. You are entitled to withdraw your agreement that the 48 hour limit shall not apply to your employment by giving the Company not less than three (3) months prior written notice.

My problem is that they are saying that I have opted out of the Working Time Regulations, and as it's in everyone's contract they've obviously done this as a workforce as a whole. In addition to all of this I've been informed in the cover letter that if the contract is not signed and received then....

"If not received by 16th May 2013, I regret to advise that the increase of salary will not be effective in May 2013 and onwards, until such time as your acceptance is received".

Can they do that??? I thought that the Working Time Regulation was an optional opt out rather than an optional opt in.

[leclerc]

Re: Terms & Conditions of Contract (Working Time Regulations)

Certain occupations are exempt so can I ask what field of work you are in?

[Eloise01]

Re: Terms & Conditions of Contract (Working Time Regulations)

You are being given the option to refuse! Don't sign the contract with the new terms in it. And don't get the payrise! That a clear enough "option"

I am not clear why you are saying that you haven't opted out - if they are adding this clause, which opts you out, then clearly you aren't already opted out. When you start employment the default position is that you cannot work more than 48 hours (on average) per week without signing an opt out. There is no evidence you have signed one - this is it.

[mystery1]

Re: Terms & Conditions of Contract (Working Time Regulations)

http://www.legislation.gov.uk/ukpga/1996/18/section/45A45AWorking time cases.

(1)

A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker—

(a)

refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M1Working Time Regulations 1998,

(b)

refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,

(c)

failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations,

(d)

being—

(i)

a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or

(ii)

a candidate in an election in which any person elected will, on being elected, be such a representative,
performed (or proposed to perform) any functions or activities as such a representative or candidate,

(e)

brought proceedings against the employer to enforce a right conferred on him by those Regulations, or

(f)

alleged that the employer had infringed such a right.

(2)

It is immaterial for the purposes of subsection (1)(e) or (f)—

(a)

whether or not the worker has the right, or

(b)

whether or not the right has been infringed,
but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith.

(3)

It is sufficient for subsection (1)(f) to apply that the worker, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4)

This section does not apply where a worker is an employee and the detriment in question amounts to dismissal within the meaning of Part X F2. . ..

[F3(5)

A reference in this section to the Working Time Regulations 1998 includes a reference to

[F4(a)]

the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F5(b)

the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.]

[F6(c)

the Cross-border Railway Services (Working Time) Regulations 2008]]





M1

[Eloise01]

Re: Terms & Conditions of Contract (Working Time Regulations)

I assume that this quote is intended to demonstrate that the employer cannot withhold a payrise? Don't bet on it. A payrise is a contractual condition. If an employee wishes to remain on their existing conditions of service, which includes their existing pay, they may exercise the option to do so. If they wish to vary that contract, then they need to accept the whole variation. That does not amount to a detriment. It amounts to choosing to remain on their existing contractual terms. Which the OP may choose to do.

[mystery1]

Re: Terms & Conditions of Contract (Working Time Regulations)

I assume that this quote is intended to demonstrate that the employer cannot withhold a payrise?

Not if it's because they wouldn't opt out i'd say.

M1

[Eloise01]

Re: Terms & Conditions of Contract (Working Time Regulations)

Not if it's because they wouldn't opt out i'd say.

M1

Well we must agree to disagree. If the OP wishes to exercise the right to refuse the new contract, they obviously have the right to take their employer to an employment tribunal, who will determine the matter finally. But trade offs in new contractual terms are commonplace, and it is my view that they would not succeed. Especially, as is likely, the majority of employees accept the new contractual terms.

Of course, the additional problem which the OP faces, because this is the real world, is that they get to make that claim whilst still in employment. For now. The employer has obviously thought this strategy through, and has a defence - in my view, a strong defence - in mind. I doubt getting the "right" result in an upcoming redundancy process, or finding those little, currently tolerated, quirks that might otherwise be disciplinaries, is beyond them.

Quoting legislation out of context and outside the effects of the real world is all very well. But that is neither advice nor opinion. It is theory. And the problem with theory is that it may not work well in practice.

[mystery1]

Re: Terms & Conditions of Contract (Working Time Regulations)

Enforcing working rights, particularly whilst still employed, is fraught with danger. I agree with that.

However when confronted by an employer who thinks they can do whatever they want regardless of any employee thoughts then it's decision time. Bend over and take it or use the law to stop them. How much bending over you do before you stand up is dependant on your mind and circumstances.

I think in this case the law is pretty clear.


We want you to opt out of your rights or you don't get a pay rise is clearly a detriment if you say no as it costs you money.

M1

[Eloise01]

Re: Terms & Conditions of Contract (Working Time Regulations)

Enforcing working rights, particularly whilst still employed, is fraught with danger. I agree with that.

However when confronted by an employer who thinks they can do whatever they want regardless of any employee thoughts then it's decision time. Bend over and take it or use the law to stop them. How much bending over you do before you stand up is dependant on your mind and circumstances.

I think in this case the law is pretty clear.


We want you to opt out of your rights or you don't get a pay rise is clearly a detriment if you say no as it costs you money.

M1

As I said, we will have to agree to disagree. The OP has been given the option of a new contract and terms. If they wish to dispute some but not all of these terms, they have the choice to do so. And take the risk...