Legal Article - Employment Law

Partly Unmeasured Working Time

There is an exception for workers who have an element of their working time pre-determined, but otherwise decide how long they actually work.

There is a test:
“the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work (in addition to that which is measured or pre-determined) the duration of which is not measured or pre-determined or can be determined by the worker themselves.”
 
Any time spent on such additional work will not count as working time towards the weekly working time or night work limits, Simply put, additional hours which the worker chooses to do without being required to by their employer do not count as working time; therefore, this exception is restricted to those that have the capacity to choose how long they work. The key factor for this exception is worker choice without detriment.

Some or none of a worker’s working time may meet the test. Any working time that does meet it will not count towards the 48-hour weekly working time limit or the night work limits

This exception does not apply to:
• working time which is hourly paid
• prescribed hours of work
• situations where the worker works under close supervision
• any time where a worker is expressly required to work e.g. attendance at meetings
• Any time a worker is implicitly required to work e.g. because of the loading or requirements of the job or because of possible detriment if the worker refuses.

No one can be forced to work more than an average of 48 hours a week against their will; this does not remove this protection from any worker. It applies to working time- it is not confined to any particular category of worker, but applies where the specific characteristics (i.e. the nature) of their work meet the test set out above.

The following categories of workers are excluded from the limits on night work and the daily and weekly rest periods and daily rest breaks, although equivalent compensatory rest periods must be given, and the period over which the average 48 weekly hours are calculated can be 26 weeks instead of seventeen:

• A worker’s activities are such that their place of work and place of residence are distant from one another or their different places of work are distant from one another. This may apply to workers where, because of the distance from home, it is desirable for them to work longer hours for a short period to complete the task more quickly or where continual changes in the location of work make it impractical to set a pattern of work;

• a worker is engaged in security and surveillance activities which may require round-the-clock presence to protect property or a person (petrol forecourts may be covered);
• a worker’s activities involve the need for continuity of service or production, especially where there is a need for round-the-clock activity or where work cannot be interrupted on technical grounds (petrol forecourts and vehicle recovery operations maybe covered);
• there is a foreseeable surge of activity;

• A worker’s activities are affected by an occurrence due to unusual and unforeseeable circumstances, beyond the employer’s control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care, or an accident or the imminent risk of an accident.

This provision relates essentially to emergency situations or those that arise outside the normal course of events (vehicle recovery operations may be covered).

Published: 03 Jun 2011

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