Working Time Directive and multiple employers.

[teaboy2]

Re: Is this unfair dismissal?

Yes, an employee can work as many hours as they choose so long as they sign an opt-out agreement, but without this both employers are responsible for ensuring the employee's working time does not exceed 48-hours per week.

You are correct - any employer who has a full time employee, who has a second job, is likely to be breaching the WTR in relation to working hours, rest breaks etc. It's usually a case of 'ignorance is bliss' though.

From someone who has studied employment law at degree level I can tell you that is the law, not my opinion.

- Matt

I disagree its merely advisory that the employer gets them to sign an opt out if there total hours "hours work for all employers" exceeds 48hrs - Its not law.

Its only law for an employer to have the worker opt-out if that employer would like the worker to work more than 48hrs for them alone.

The regs doesn't stipulate that the total working hours that the worker works between all employers should be counted for the purposes of establishing the maximum working week!

The act refers to employer (meaning singular) and not employ(s) (meaning either singular or plural) - Therefore given your argument that an opt out is required by all employers of the worker, when said workers hours between all employers is more than 48hrs your argument comes in to conflict with section 10 (daily rest) and/or section 11 (weekly rest). Where as my argument, that the 48hr maximum is maximum hours a worker can work per employer and only needs an opt out if an employer would like the worker to work more than 48hrs for them alone, regardless of hours worked for other employers, doesn't come in to conflict with section 10 and/or 11 as its daily rest per shift per employer and weekly rest per week per employer - Just like its 48hrs maximum per week per employer!

So for example in my argument the worker gets 11 hours rest between shifts and 1 days rest per week at Employer A and for employer B he gets 11 hours break between shifts and 1 days rest too - perfectly inline with regs 10 and 11.

Under your argument that the regs apply universally therefore limiting the 48hrs to maximum an worker can work for in total between multiple employers, unless the worker opts out with 1 or more employers, then section 10/11 should apply universally too. Therefore if the worker worked 8 hours for employer A and then 7 hours for Employer B total hours worked would be 15 hours leaving 9 hours daily rest! A breach of section 10 if regs applied universally. If employer A gave 1 day off (saturday) were Employer B gave 1 day off (sunday) the worker would still be working 7 days a week and thats a breach of reg 11 as they wouldn't be getting their entitlement to 1 days rest if the regs applied universally.

Now you can't say reg 4 and 5 apply universally on a multiple employment basis of any one worker and that the rest only apply on a per single employment basis per worker! As each reg refers to employer in the singular sense "employer" - to apply universally to all of a single workers employers the regs would have to refer to employers in the pural sense "employer(s) meaning one or more!

Therefore the regs apply singularly to one instance of employer/worker relationship and not on multiple employer(s)/worker relationship

That's the best way i can explain it to you.

As for studying employment law at degree level, well it doesn't mean your right, even lawyers and solicitors get it wrong - Though you may want to provide proof you studied employment law at degree level to the site team, if you've not already done so - Am not accusing you of lying or anything, but when people make such statements its raises eyebrows here. But then there has been people in the past here in the employment section making similar claims and proven to be lying Matt... Hell one claimed she was a barrister but it turned out she was a desk jockey at a local council!!

ADDITIONAL: in regards to the government guidance you edited in to you post whilst i was writing the above - It is Guidance they don't state "legally required/obliged" and they merely state "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." not "the worker is required by law to opt-out if they wish to work more than 48hrs a week in total" - So as i said its guidance only, nothing more than that!

[Amethyst]

Re: Is this unfair dismissal?

As this is getting a tad irrelevant to the OP now I will move the posts to another thread and leave just the main point on here.

DONE.

[Tools]

Re: Working Time Directive and multiple employers.

This is the official statement from the working time directive. This does not apply if the worker has opted out.

Working hours if someone has more than one job

If someone works for more than one employer, the amount of combined hours shouldn’t be more than 48 hours on average a week.
Workers with more than one job could either:

• consider signing an opt-out agreement if their total time worked is more than 48 hours
• reduce their hours to meet the 48-hour limit

source: https://www.gov.uk/maximum-weekly-wo...-working-hours

As for following procedure, the ACAS guidelines or only that, guidance not law.


A failure to follow the Code does not, in itself, make a person or organisationliable to proceedings. However, employment tribunals will take the Code intoaccount when considering relevant cases. Tribunals will also be able to adjustany awards made in relevant cases by up to 25 per cent for unreasonablefailure to comply with any provision of the Code. This means that if thetribunal feels that an employer has unreasonably failed to follow the guidanceset out in the Code they can increase any award they have made by up to25 per cent. Conversely, if they feel an employee has unreasonably failed tofollow the guidance set out in the code they can reduce any award they havemade by up to 25 per cent.

source: http://www.acas.org.uk/media/pdf/h/m...procedures.pdf - Page 1

As you had only worked there for 5 months you have no right to bring it to a tribunal and therefore the failure too follow guidance is not really relevant.

Eligibility to claim unfair dismissal

Employees can only claim unfair dismissal if they’ve worked for a qualifying period - unless they’re claiming for an automatically unfair reason.

Before 6 April 2012	After first year of employment
After 6 April 2012	After 2 years of employment

source; https://www.gov.uk/dismiss-staff/eli...fair-dismissal

[teaboy2]

Re: Working Time Directive and multiple employers.

@Tools

This is the official statement from the working time directive. This does not apply if the worker has opted out.


source: https://www.gov.uk/maximum-weekly-wo...-working-hours

Official Guidance yes, but not law! If it was law it would be written similar to below:

If someone works for more than one employer, the legal maximum amount of combined hours a person can work is no more than 48 hours on average a week.
Workers with more than one job are legally obliged to either:

• consider signing an opt-out agreement if their total time worked is more than 48 hours
• or reduce their hours to meet the 48-hour limit

but its not worded like that, because its not law! if it were law, it could (deepening on total hours worked per day/week for all employers) put the workers employers in breach off reg 10 and/or 11 as the 11 hours daily rest and 24hr weekly rest period would have to be combined too and not treated separately per employer as they currently are!
Basically if your combined total hours worked for the week over all jobs you work at was over 78hrs, all your employers would be in breach of reg 10/11 for failing to ensure you had 11hrs uninterrupted daily rest over 6 days and 1 24hr period off daily rest every 7 days! hell if you worked a combined total hours of more than 13hrs in any one day, your employers you worked for that day would be in breach of reg 10 as 24-13 is 11hrs, your daily rest entitlement, and working more than 13hrs means you get less than 11hrs rest and less than your entitlement. You can't treat hrs under reg 4 as combined hours worked for all employers and not treat hours of rest as combined hrs over all employers too!

So my whole point is what your all saying is law/guidance (or whatever) doesn't fit as it conflicts with the reg 10/11 and puts the employers of that one worker in breach of reg 10/11. Where if you keep the maximum of 48hrs to a single employer/ worker relationship where they only need to opt out on a single employer/worker relationship where the employer in that single relationship would like worker to work more than 48hrs, and not treat it as multiple employer relationship with one worker where the total hours worked for all employers are combined for the purpose of reg 4 (nothing in the act stipulates its combined total hours over all employers) - Then you do not have a conflict with reg 10 and 11 either as your treated all hours worked under each employer separate and not combined. Therefore your rest period per shift and week are also treated separately too and therefore your getting 11hrs minimum rest per day between shifts at each separate employer.

for example when hrs worked are treated separately under reg 4 and not combined - You work 6am-2pm at employer A and have Sundays off. Your next shift at employer A is 6am next day - 16hrs between shifts
Yet you work 3pm to 10pm For Employer B and your next shift for employer B is 3pm next day - That's 16hrs between shifts at employer b too

But if treat your hours as combined for the purpose reg 4 across all employers, then you would have started work for employer A at 6pm finished at 2pm then started work at employer b at 3pm and finished at 10pm meaning combined hours between both employers per day is 15hrs (1hr between jobs not counted for), which means your daily rest period is just 8hrs when you treat your hours as combined between all employers!!

The Flaw is not in the regs as the regs are sound, the flaw that courses the conflict is the guidance and advisory on health and safety reasoning that hours worked between all employers combined should not exceed 48hrs. But nothing in the regs that says you should treat the total hours worked between all employers as counting towards the 48hrs maximum - As i said the regs were drawn up at a time when vast majority of full time workers had 1 employer an few had second jobs where as a lot of people have second jobs on top of their full time job. The regs were meant to cover more than 1 employer/worker relationship! the advise/guidance being given is only recent advise/guidance as a result of more and more people having 2nd jobs!

Truth is they need to rewrite the regs so its suitable for present day working patterns!

[matt3942]

Re: Working Time Directive and multiple employers.

Regardless of everyone's opinion, the law is very clear when it comes to maximum weekly working time - an employer is responsible for ensuring its employees do not work more than 48-hours per week, where there is not an opt-out agreement in place.

The legislation doesn't limit working time to time worked only for one employer, but this is ambiguous, which is why the Government issued the guidance referred to above.

Yes, solicitors do get things wrong but frankly I'm more inclined to accept the interpretation of someone who's been to law school and specialised in employment law. Particularly when they're all saying the same.

As far as I'm concerned this is the end of the discussion. I shan't be contributing to it further.

- Matt

[teaboy2]

Re: Working Time Directive and multiple employers.

Regardless of everyone's opinion, the law is very clear when it comes to maximum weekly working time - an employer is responsible for ensuring its employees do not work more than 48-hours per week, where there is not an opt-out agreement in place. - And i agree with that but only on an individual employer/worker relationship basis, not on a combined hours total worked for all employers, as an employer is not liable or responsible for what the worker does outside of the hours spent working for that particular employer and therefore wouldn't be in breach of reg 4 if the worker worked less than 48hours for them or had opted out with that employer to work more than 48hrs for that employer.

The legislation doesn't limit working time to time worked only for one employer, but this is ambiguous, which is why the Government issued the guidance referred to above.

Yes it is Ambiguous and as i said needs updating to bring it inline with present working practices where people do have secondary employment and not just 1 full time job! The guidance itself is what conflicts with regulations as it doesn't stipulate whether its combined total or not, but if its combined then you have to treat the daily total hours combined too, which is where the guidance falls foul with reg 10/11 as you can treat reg 10/11 as referring to individual working employer/worker relationship and treat reg 4 as all employers relationship of single worker and therefore combined. Neither regs 4/10/11 state you can treat them as combined hours between all employers.

Yes, solicitors do get things wrong but frankly I'm more inclined to accept the interpretation of someone who's been to law school and specialised in employment law. Particularly when they're all saying the same.

Yes but all referring to same guidance as the regulations doesn't stipulate either way, and you can't treat one section of the regs as combined total hours over all employers the worker works for and treat the rest differently i.e. on a individual employer/worker! you agreed yourself it would put employers in breach of reg 10/11 back in post #15

I provided links i've used the legislation to point out it doesn't say total combined hours, that the regulations are meant regulate per individual employer/worker relationship not multiple employer relationships with 1 worker i.e refers to single "employer" not once does it refer to 1 or multiple "employer(s)"

Where are you links to legal doctrine/thesis/law books or legislation that states otherwise? All i've seen being used to counter my argument is guidance or advisory under health and safety, yet that fails to protect the worker in regards to rest breaks and only covers the employers arse from being in breach of reg 4. And theres no opt out of minimum daily and weekly rest period! which your argument allows for the employer to be in breach of workers right to rest periods where as mine doesn't put the employer in breach of any of the regs

As far as I'm concerned this is the end of the discussion. I shan't be contributing to it further.

That's up to you, but i think its a worthy debate, regardless of who maybe right or wrong! And as its now in its own thread and not impacting on the original thread i think we should continue the debate, even if we can not come up with an agreed interpretation we can still agree a agreed a clear and concise approach of how best to advise others in similar situations as the original threads OP, even if its to advise them of both sides of the argument! Either way untill we have case law or the regs are amended its still going to be 50/50 as to which interpretation is right!

- Matt

See in red above - only thing we disagree on is the interpretation of reg 4 whether it applies to total hours combined for all hours the worker works for all employers, or hours work in total per week for a single employer!! I believe its the latter due to it not conflicted with the rest of the regs!

Ohh and one question - And who is that that your referring to that has been to law School and specialises in employment law? given you earlier said or implied (prior to editing the post, but still visible in my quote of your post in post #16) that you studied employment law at degree level.

[teaboy2]

Re: Working Time Directive and multiple employers.

Right i done so more reading in to this, i have read the EC commission reports from 2010 where they were reviewing the working time directive. In it they admit the hours were meant as "per worker" total, however it had not foreseen the changes to persons having multiple contracts so the directive needs to be clarified and more clear in regards to it meaning "per worker" and not "per contract" - But as the regs currently stand their is no mention of it being per worker which is my entire point, it doesn't differentiate between single or multiple contacts per worker, the regs as they currently stand are based on per employer.

Until 2008 the regs were fine as they are, as most people didn't have secondary jobs or work over 48hrs if they did! But since the economic crisis, more people are now on multiple contracts and working over 48hrs in total over multiple contracts. So because of this, questions have been asked for clarity purposes, but just because the EC has stated post 2008 that the hours refer to "per worker" and not "per employer" it doesn't change what the law states currently which doesn't say anything about multiple contracts, or that the hours are per worker, it does refer to "employer" though so its more "per employer" focused, which back in 1998 it probably was intended to be "per employer" as they hadn't foreseen people having multiple contracts.

Plus you then have the issue of reg 10/11 they too are per employer in regards to hours worked by the worker for said employer, to base regs 10/11 on total hours worked per day/week by per worker under multiple contracts, then its likely to put the employers of the worker in breach of the regs 10/11 as a result. Where as based on per employer it does not, hence why the reg 4 was and is based on per employer not per worker just like reg 10/11 is - The EC are saying reg 4 refers to per worker now (post 2008) purely because at the time it was rare or unheard of for workers to have multiple contracts and since 2008 more and more people are working over a total of 48hrs over multiple contracts (something the EC had not foreseen).

But the EC has recognised the issue of multiple contracts, and the issue of treating reg 4 as per worker and reg 10/11 as per worker and not per employer! The problem they face now is how do they change the regs to be clearly refer to per workers without causing greater problems with the regs? how do they enforce it? as not all employers will be aware that their workers will have second/multiple jobs! They do not have an answers yet, hence why the regs still have not been amended. But its only because of the EC saying reg 4 was intended as per worker that the guidance advice you all have been referring to has be given. But what the EC statement or that guidance advice alone doesn't do is change the law as it currently stands, which has been the same since 1998, and doesn't refer to reg 4 as being per worker because at the time (1998) it was meant as the maximum hours worked by a worker per employer per week - Even if the intention was for it to be a per worker not per employer, because at the time they did not foresee workers having multiple jobs!

So my argument is based on the law as it stands and has stood since 1998 - The alternative argument is based on statement given by the EC post 2008 in response to queries from member states, social partners, business groups etc! But that statement from the EC and subsequent guidance and advice based on the statement from the EC, does not change the law - And that's where the problem is, the guidance is more inline with current working practices/employment practices than the regs are. So yes the regs are outdated and need amending to bring them in line with current working practices/employment, but until then any employer that follows the guidance is risking, unintentionally, putting themselves in breach of reg10/11 for each worker of there's that has a second/multiple employment(s), because the regs as they stand are per employer and the guidance is per worker!

The law doesn't change just because the advise or guidance has!!!! That is an indisputable FACT - Yet that is exactly whats being disputed here by those that favour the guidance over what the Regs actually do and do not state!

[wales01man]

Re: Working Time Directive and multiple employers.

Having been self employed all my working life before I retired I wouldhave worked most weeks well over 60 hours sometimes 100 can I claim against anyone because I never signed an opt out.

Back to the argument about the Law many workers do not tell there employers they work for someone else

[teaboy2]

Re: Working Time Directive and multiple employers.

Thank you @wales01man - Many do not tell their employers of secondary jobs, so its practicably unenforceable and impossible an employer to monitor total hours per worker that they work under another employer. And in my view, limiting an employer to a maximum of 48hrs or if they opt out to a cap of of x amount of hours (being considered by the way) in total is a breach of a persons fundamental freedom of choice to work as many hours as they like! Yes the maximum hour is there for interest of health and safety purposes, but there has to be a limit and it should not come at the cost of a persons personal freedom of choice! And as the regs currently stand its based on per employer so it doesn't encroach on personal freedom of choice, but the guidance/advice being given does! Which is another issue the EC faces in regards to amending the working time directive!

Self employed are excempt i believe as your the autonomous decision maker. But i think even that excemption may be removed soon too!