Legal Article - Employment Law

Employee Exemptions

“Mobile” workers employed in road, air, rail and water transport are at present totally excluded from the Regulations, other than the provisions relating solely to young people below the age of 18. The exclusions relate specifically to the sectors specified i.e. the transport of goods etc. Industries involved with service, repair etc. of vehicles, or the hire or collection of vehicles are unlikely to be classified as “road transport”.

However, own account transport operations where a company operates a fleet of vehicles to deliver goods to its own premises are likely to be considered to be in the transport sector, although van drivers delivering parts are unlikely to be so included. It is unclear at this point in time whether non-mobile workers are covered (e.g. cleaners), or whether the mere location of work activity in, for example, a road transport terminal is sufficient to make workers carrying it out subject to exclusion. The same applies to workers involved in the movement of goods or people to or from a mode of transport such as loading/unloading onto/from road vehicles.

Partial Exemptions

Workers where, on account of the specific characteristics of the activity in which they are engaged, the duration of their working time is not measured or predetermined or can be determined by the workers themselves, are excluded from the limits on weekly and night working hours and the minimum daily and weekly rest periods and rest breaks, but not the holiday provisions.

It is essential that these workers genuinely control how many hours they work and these are not monitored or determined by the employer. Such a situation may occur if a worker can decide when the work is to be done, or may adjust the time worked as they see fit. An indicator may be if the worker has discretion over whether to work or not on a given day without needing to consult their employer.

The Regulations cite as examples managing executives or other persons with autonomous decision-taking powers and family workers. It may also cover mobile sales staff, home workers or those working flexible hours, but is unlikely to cover supervisors or junior managers.

However, it is the characteristics of a worker’s activity that will determine whether the limit may be excluded.

Published: 03 Jun 2011

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