Working Time Directive and multiple employers.

[matt3942]

"You could work 48hrs per week at both companies and neither would be in breach of the working time regulations!"

That's not correct - if you work for more than one employer the total combined hours you work shouldn't exceed the 48h average limit, unless you have signed an opt-out agreement with one (or more) of your employers. This is what the employer is referring to in this case.

- Matt

[teaboy2]

Re: Is this unfair dismissal?

[MENTION=67649]matt3942[/MENTION]

I disagree as the working time regulates only the hours worked per employment. Any hours the worker works under separate employment, are not relevant to the other employer. Therefore the maximum hours (subject to regulation 5) that a worker can work per employment is 48hrs

“employer”, in relation to a worker, means the person by whom the worker is (or, where the employment has ceased, was) employed;

If it applied universally to all employment (and i don't see anywhere where it states it does) the worker was in, then that would breach everyone's fundamental rights as it would put a limit on peoples fundamental freedoms of choice in regards to how many hours they want to, or wish to, work.

Plus how is one employer to know precisely how many hours the worker has worked for the other employer?!

But anyway its a side issue, and as hes signed a waiver anyway then there's no point in debating it here, as hes free to work as many hours he wishes sinces hes opted-out of the maximum hours per week as far as the employer connected to this thread is concerned!

[matt3942]

Re: Is this unfair dismissal?

wrong thread

What do you mean?

- Matt

[teaboy2]

Re: Is this unfair dismissal?

What i originally posted here was meant to have been posted in the "Possible Unfair Dismissal" thread, i have multiple thread open in my browser at a time so didn't realise i had posted on the wrong thread till after i posted it. So i edited it straight away and put "wrong thread". I have now edited the post to reply to this thread itself.

Easy mistake to make lol

[matt3942]

Re: Is this unfair dismissal?

Hi [MENTION=19071]teaboy2[/MENTION] - as always you're welcome to disagree but I'm telling you what the law is in relation to working time. Where someone has more than one job all the employers are responsible for ensuring that the 48-hour rule is complied with. That is why the OP's employer has included the term about Working Time Regulations in its contract.

As you said, it's not relevant to this case, I was just explaining why.

- Matt

[teaboy2]

Re: Is this unfair dismissal?

[MENTION=67649]matt3942[/MENTION] - Yes i understand that, but like i say i disagree that it limits workers to working a maximum of 48hrs per week regardless of how many jobs they have, as that would encroach on personal freedoms and rights etc - Plus one employer isn't going to know how many hours the worker worked for the other employer or the other x number of employers, so it be impossible to manage! My interpretation is that its a maximum 48hrs per week per job.

But anyway, as we agree, its not revelant to the thread here since he opted-out of it - Which actually strengthens his case, but then there's the issue of him only being their for 5 months, so tribunal is out of the question. Which leaves possible claim for breach of contract via small claims court for loss of potential earnings - But i don't think it be worth the time or effort!

[matt3942]

Re: Is this unfair dismissal?

[MENTION=19071]teaboy2[/MENTION] - It isn't 48-hours per week per job, it's in total. I'm sorry but your interpretation here is incorrect. That's not my opinion, that's law, which is quite clear.

Employees are not limited to working 48-hours per week, they can sign an opt-out agreement to work more hours. The purpose of the WTR is to prevent employers forcing employees to work more than 48-hours per week against their will.

- Matt

[teaboy2]

Re: Is this unfair dismissal?

As i said, its not relevant as hes opted-out anyway!

And am more than aware of the purpose of the regulations - But i disagree when you say a worker is limited to 48hrs of work maximum over all instances of employment without opting out! As a worker has the right to decide what hours they wish to work for each employer they are employed by. An employer is only in breach of the regulations if they try to force the employee to work more than 48hrs for under their employment alone without the employer opting out or against the employers wish to not work more than 48hrs for that employer! The employer can not be in breach just because the employee total hours of work for all instances of employment is more than 48hrs and/or when the employer failed to opt-out as the act of the worker working said hours voluntarily alone is seen as opting-out!

Also the employer, under the regulations, is only required to keep records of hours the worker worked under their employment alone over the specified period - They are not required to keep records of hours the worker works for a separate employer!

Anyway no point continuing. You have said your thoughts on it and i have said mine so i think we should just leave it there!

[matt3942]

Re: Is this unfair dismissal?

I can't say it any other way - the WTR and all the guidance is very clear - it is 48-hours per week in total, not per job.

Read the WTR, do some research - it's all there clearly. I can signpost you to a dozen different sources - mostly employment law solicitors - that confirm what I'm telling you.

- Matt

[matt3942]

Re: Is this unfair dismissal?

[MENTION=6]Amethyst[/MENTION] is absolutely right. Thank you.

- Matt

[Amethyst]

Re: Is this unfair dismissal?

I usually am

well...........

sometimes

maybe

[teaboy2]

Re: Is this unfair dismissal?

Have we figured out on this if the OP had informed the employer of the second job ? as that was a term in the contract.

Has that been bought up in investigation meetings etc ?

He'd already opted out of the WTD so that shouldn't be an issue - certainly not for dismissal - UNLESS he's employed as a driver etc with stricter regs.

Yes hence why i said it was a pointless debate anyway.

And i still disagree. As an employer is only responsible for the hours a worker works whilst in their employment not the hours worked under another employers employment or total hours worked by a worker under all employers the worker is employed by - Its unreasonable and illogical to say any one employer is responsible for how many hours a worker works for other employers! And the regulations refer to "employer" not "employer(s)" No where does it state any one employer is responsible for hours a worker works for a different employer. How is an employer meant to know or account for overtime a worker has worked for a different employer week in week out? Its impossible for Employer A to know how many hours overtime a worker of theirs worked for Employer B, C, D xxxxx X, Y, and Z! No where does it state a worker is limited to working 48hrs per week in total (48hrs split between all jobs). No where does it state the employer must work out if his workers total hours worked between all employers is more than 48hrs or keep records of total hours a worker worked for all employers. It simply states they can opt out if they wish to work more than 48hrs for the Employer (not Employer(s) - meaning more than 1 employer) provided the employer complies with paragraph 4 of regulation 5. Paragraph 4 of regulation 5 states what records the employer must keep and low and behold it refers to hours the worker worked for the Employer (not Employer(s) - meaning all employers the worker works for). The regulations were made at a time when it was practically unheard off for people to have both a full time job and a part time job, let alone two full time ones! it was made with the purpose of 1 employer in mind!

As for what matt said about sources - well guidance on good practice (and advised purely for health and safety reasons) doesn't make it law - Any case law yet? no, i wonder why!

Below is taken from answer to the third question - http://www.lra.org.uk/index/employme...egulations.htm

The Working Time Regulations (Northern Ireland) 1998 (as amended) state that a worker cannot be required to work in excess of an average of 48 hours per week. While the Regulations do not clearly state that a workers total working hours (where there is more than one employer) should be counted for the purposes of establishing the maximum working week (with an exception for young workers) employers are advised to do so for health and safety reasons. Employers are advised therefore to check with workers whether they have more than one job and to establish if the total working hours exceed an average of 48 hours. Where they do and the worker wishes to continue to do so, it is suggested that the employer encourages the worker to sign an opt out certificate (see above) stating clearly that they wish to opt out of the maximum working week.

That may be based of Northern Ireland working time Regulations but they the exact same as UK regulations!

The only legal requirement on the employer (employer A) is that he can not force a worker to work more than 48hrs for him alone without the worker opting out - its irrelevant how many hours in total the worker works for all employers A,B,C.......X, Y and Z!! Your both trying to pass off general guidance, made purely with heath and safety reasons in mind, as though its law - when its not!!

Next you'll all be saying the employers in breach of the regulations due to the worker not getting a minimum 11hrs rest between shifts and 1 day rest each week (90hrs in total) as a result of the worker having another job!

[matt3942]

Re: Is this unfair dismissal?

[MENTION=19071]teaboy2[/MENTION] - I'm not going to read all of your reply. Two people have now told you that your interpretation is wrong and you refuse to accept it.

Frankly it's absurd to believe it's legal for an employee to work 48h per week, per employer!

This isn't relevant to the OP's case but for anyone else to whom this applies I strongly recommend you find this information out for yourself and not rely on advice given here.

- Matt

[teaboy2]

Re: Is this unfair dismissal?

Not adsurd at all its the employers basic right to work as many hours as they wish be for one employer or 10 - The whole reason the UK has an opt-out was so as not to limit peoples rights to choose how many hours they wished to work - its a basic freedom of choice, a fundamental Human Right!

And i suggest you do read my post as you will see your arguing what is in fact general guidance given for health and safety reasons only as being law, when its not. You'll also see how hypocritical your argument is when you consider the minimum daily and weekly periods of rest too. As under your argument of an employer being accountable for a worker working more than 48hrs across all employers the worker works for, then that same employer must be accountable for the worker not receiving the minimum daily/weekly rest entitlement also as a result of the hours worked for other employers, and therefore in breach of the regulations - meaning every single employer that has a full time member of staff that also has a second job would likely be in breach on the regulations regarding daily/weekly minimum rest periods! And even if they had 11hrs between shifts you can bet your bottom dine they'll be working on their day off for their second employer and therefore not getting the minimum weekly rest period!

And i was the first to say it was irrelevant to the thread and no point debating and said so in just about every post but you choose to carry it on!

[matt3942]

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.

For info, this is the guidance issued by the Government in relation to regulation 4 of the WTR: "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."

- Matt