Hampshire Fire and Rescue Authority Item 8

Human Resources Committee

15 June 2007

Working Time Regulations

Report of the Chief Officer

Contact: Susan Templeton Tel : 023 80 644 000 Email : susan.templeton@hantsfire.gov.uk

1

Summary

The UK has one of the longest working hours culture in the European Community and long hours are proven not to be healthy for workers in many ways, including personal ill health and increased risk of accidents. These can be costly for the worker and their family but also affect the cost and success of the organisation by increased sickness absence and litigation, so on a legal, ethical and financial basis it makes good sense to apply the Working Time Regulations.

2

Recommendation

2.1

To note the actions being undertaken to meet the Working Time Regulations within the Service as detailed in Service Order 1/21 and the collective agreement.

3

Introduction and Background

3.1

The Working Time Regulations were introduced in 1998 as part of the Health and Safety at Work, suite of legislation. It applies to the majority of industries and work situations including the Fire Service. The main thrust of the legislation is to provide a set of requirements that an organisation must adhere to or be in breach of the Regulations. The key ones, applicable to adult workers (these are different in some cases for young workers (under 18 years old)), are:

· Working Hours - Can only work an average of 48 hours, including overtime, in the agreed reference period. Unless the worker voluntarily signs an opt out clause. There is currently no UK legislative maximum working hours but the European Union are providing heavy pressure on the UK to remove the opt out clause or as a compromise have a maximum of 60 hours working a week.

· Rest Breaks - Food break, unpaid, of 20 minutes in a working day of over 6 hours. 11 hours unbroken rest in each 24 hour period. 24 hours unbroken in each 7 day period. All averaged over the reference period.

· Holidays - Right to have 20 days leave a year which could include public holidays, again this is under review both to the amount of holiday and whether it should include bank holidays.

· Night Workers - For designated night workers there are additional requirements which include the right to an annual free health assessment if requested by the worker.

· Driver - They are subject to a linked legislation which if it applies places requirements on the number of driving hours, breaks, etc.

Note 1: Reference period. The Regulations say that all the above can be averaged out over an agreed period of time which, depending on the nature of the work, could generally be up to 26 weeks maximum, however they set a default period of 17 weeks if another period is not agreed this is the normal period.

Note 2: A common fallacy is that if a worker opts out then the Regulations do not apply. This is totally incorrect, it does still all apply, all it means is that the worker can choose to do more than 48 hours a week on average.

Note 3: Compensatory rest means that the worker may not get their break for one of the excluded reasons at the normal time they should but takes this at another time within the week/reference period which can include normal programmed time off, eg, for some workers at the weekend. It does not however mean the worker can work solidly for 14 weeks and then take the last 3 weeks of the reference period off as the compensatory rest; this would clearly be unsafe and unhealthy.

Note 4: The Regulations use the term worker as this has a wider connotation than employee.

3.2

The Working Time Regulations can be quite complex to apply especially as all work qualifying under the Regulations whether for HFRS or not has to be taken into account. The group came up with the following key elements to assist in enabling an easier route through the minefield:

· A maximum of 48 hours actual working time (all employment) to be undertaken by a worker over the agreed reference period as per Working Time Regulations. If an opt out HAS NOT been signed.

· A maximum of 60 hours actual working time (all employment) to be undertaken by a worker over the agreed reference period. This is in line with European Union suggestion for the UK. If an opt out HAS BEEN signed.

· A maximum of 144 hours (including the 48/60 hours actual Working Time Maximum) standby/cover (all employment), to be undertaken by a worker over the agreed reference period. This provides the worker with a guaranteed 24 hour break each week, in line with the Regulations.

· The 24 hour break required within each 7 days will be flexible (not a set date per week) to fit in with workers other employment, where applicable, and the nature of random call outs. The worker will with their manager, need to ensure they do get a 24 hour break for each 7 days over a 7 or 14 day maximum period.

4

Process Followed

4.1

A working group was set up in August 2006, Chaired by the Deputy Head of Human Resources. The group consisted of employees from all key functions and from all representative bodies along with an external member from a neighbouring Fire Service.

The outcomes of the group resulted in the following core documentation:

· Service Order with Managers Tool Kit to enable managers to undertake Working Time Risk Assessments with their workers, a Working Time opt out agreement and a policy statement and collective agreement stating what has been agreed within the Service as applying. See Appendix A

· All workers will be required to seek permission in writing when they wish to undertake additional work.

· A Communication and Education strategy with supporting documents such as web site pages, and hard copy guidance for managers and employee's on the Working Time Regulations.

· Amendments to Contract of Employment clauses and Service Order SO 1/2/20 on outside employment to reflect the agreed policy.

· Recruitment Packs to include information concerning the Working Time Regulations and HFRS's Policy.

An implementation plan is attached as Appendix B.

5

Contribution To Corporate Aims

5.1

The Working Time Regulations support a number of IRMP 2007/2010 objectives, namely:

MR1 Achieving our vision by empowering our workforce.

MR2 Cultural change and living our values.

MR4 Investors In People.

RE1a Changes to day crewed fire stations.

6

Risk Analysis

6.1

HFRS is undertaking application of the Working Time Regulations under a clear risk assessment process by setting clear policy guidelines to be applied to workers and the level of working activities and consequent working hours they undertake applied correctly and appropriately. This should minimise risk of workers breaching the Regulations.

6.2

The introduction of changes to RDS contracted working hours are more sophisticated. Time Management Systems being discussed currently should enable recording and monitoring to be made easier and trends spotted and actioned earlier.

7

Resource Implications

7.1

Human Resources

Managers and employees have been required to monitor and record working hours since 1998. The introduction of the Flexible Working Hours Scheme to non watch based workers has made the monitoring of some workers easier. As noted above the introduction of Time Management Systems would assist with working time recording and monitoring for HFRS based work.

There may be an impact on the RDS service, part of the RDS review, and the number of multiple contracts both with HFRS and/or another employer. Some external employers are questioning workers commitments to other work eg RDS.

7.2

Physical Resources

No impact.

7.3

Information and Communication Technology Resources

The need for Information Technology to assist in recording and monitoring working hours has been recognised in:

    · The work being undertaken in the RDS Review.

    · Inclusion in the specification for the new Workforce Strategic Management Planning Information System(s).

7.4

Financial Implications

Not determinable currently. If additional workers are required due to a need to reduce RDS workers hours or the number of multiple contracts held by some workers this will have an impact on the establishment and costs.

A budget of £1500 was agreed by SMT to support the implementation of the Regulations within HFRS.

7.5

Legislative Penalties

In 2005/6, 35,474 cases on Working Time were submitted to an employment tribunal. There have also been some high profile cases of workers either due to being tired after long working patterns, being killed eg, Produce Connection fined £30,000 after their worker died travelling home from work after drifting into a lorry, he was thought to be suffering from chronic fatigue and had fallen asleep at the wheel after working 76 hours in 4 days. Or the Selby rail crash, (driver fell asleep at wheel after working a series of shifts some 16 hours plus), or becoming stressed and going off sick some with permanent psychological damage from overwork (Walker) or recent (reported August 2006), HR Professional at Intel UK awarded £114,000, so stressed at work (due to workloads) had a nervous breakdown.

The Directors of an organisation and members in the public sector can be personally liable for health and safety breaches within the organisation. A worker is liable for their own acts and negligence but as in most legislative issues the organisation will not normally get away with any culpability even if the worker is solely or partly to blame.

Note: The WTR is a day one employment right. That means the worker does not have to be employed for any length of time before they can bring out a claim.

Directors can be charged with manslaughter and face a prison sentence as potentially could members. They could also face personal fines and costs.

The organisation could, if an indictable offence, face no ceiling on the fine which may be imposed and a directors a possible prison sentence of up to 2 years. If manslaughter this could be a longer prison sentence.

The Health and Safety Executive are likely to take a very keen interest in the whole organisation if a serious breach is found.

8

Equality Impact Assessment

8.1

The impact of application of the Service Order and Appendices should be positive in worker health, safety and welfare terms. An Equality Impact Assessment was undertaken.

8.2

The proposals within this report are considered compatible with the provisions of the European Convention on Human Rights, the Human Rights Act 1998, and the Race Relations (Amendment) Act 2000.

9

Consultation

9.1

Representative bodies have been fully involved in the process. Their key concern has been that their members should be able to choose the number of hours they work but accept that legislation has imposed a limit on these which they must accept.

9.2

The Service Order with the policy statement and collective agreement was formally consulted on and agreed

9.3

The Health and Safety Executive were consulted over certain key issues.

10

Conclusion

10.1

HFRS has no intention to unduly restrict workers ability to work for whatever reason, however, workers, managers and the `Corporate Directors' have a legal (not Service related) requirement to ensure the Working Time Regulations are applied and monitored. This as Health and Safety legislation is for the benefit of the worker and their co-workers and those to whom their acts affect. The consequences of long hours are very apparent in litigation, death and injury with the consequent impact on colleagues, families and friends.

Background Information (Section 100D of Local Government Act 1972)

The following documents disclose the facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report:

Working Time Guide - LGMB

The Working Time Regulations - Thomson/Gee

Drivers Hours and Tachograph Rules for Goods Vehicles in the UK and Europe - Department for Transport

Road Transport (Working Time) Guidance - Department for Transport

Working Time Regulations - Fire Services Guidance Note 6 - Department for Communities and Local Government

Note: The list excludes: (1) documents that disclose exempt or confidential information defined in the Act.

Appendix A - Working Time Regulations Service Order

Appendix B - Working Time Regulations Implementation Timeline

cehC/H/HFRA HR 15 6 07 Working Time Regulations/17 May 2007

Appendix A

Target Audience: All Employees

Draft SO/1/21

Page 1

(SMT 4/07)

WORKING TIME REGULATIONS

1 BACKGROUND

SO/1/21

Page 2

(SMT 4/07)

2 SERVICE'S POLICY

3 WHAT IS WORKING TIME?

4 DOES THIS APPLY FULLY TO THE FIRE SERVICE AS AN EMERGENCY SERVICE

SO/1/21

Page 3

(SMT 4/07)

5 WHAT ARE THE PENALTIES

SO/1/21

Page 4

(SMT 4/07)

6 RESPONSIBILITIES OF WORKERS

7 RESPONSIBILITIES OF MANAGERS

8 CONTRACT PRIMACY

SO/1/21

Page 5

(SMT 4/07)

9 YOUNG WORKERS

10 COMMUNICATIONS

11 ADVICE

12 MONITORING

SO/1/21

Page 6

(SMT 4/07)

13 MANAGERS TOOLKIT

14 CONCLUSION

Owner: Director of Human Resources and Training

Author: Deputy Head of Human Resources

Contact: Deputy Head of Human Resources

Review: 4/2010

- End -

SO/1/21

Appx A

Page 1

(SMT 4/07)

WORKING TIME POLICY STATEMENT AND COLLECTIVE AGREEMENT

1 INTRODUCTION

2 AGREEMENT BETWEEN

3 SCOPE OF THE POLICY

4 DEFINITION

5 RECRUITMENT

SO/1/21

Appx A

Page 2

(SMT 4/07)

6 DUAL/MULTIPLE EMPLOYMENT

7 NIGHT TIME

SO/1/21

Appx A

Page 3

(SMT 4/07)

8 NIGHT WORKER

9 SHIFT WORKER

SO/1/21

Appx A

Page 4

(SMT 4/07)

10 REFERENCE PERIODS

11 EXCEPTIONS

SO/1/21

Appx A

Page 5

(SMT 4/07)

12 7 AND 14 DAY PERIOD

13 CALL OUT

SO/1/21

Appx A

Page 6

(SMT 4/07)

SO/1/21

Appx A

Page 7

(SMT 4/07)

14 LEAVE YEAR

15 ANNUAL LEAVE

SO/1/21

Appx A

Page 8

(SMT 4/07)

16 WORKING TIME

SO/1/21

Appx A

Page 9

(SMT 4/07)

17 MAXIMUM WORKING TIME AND STANDBY/COVER TIME

SO/1/21

Appx A

Page 10

(SMT 4/07)

18 RECORD KEEPING

19 AGGRIEVEMENT

20 APPLICATION AND REVIEW

- End -

SO/1/21

Appx A1

Page 1

(SMT 4/07)

WORKING TIME POLICY STATEMENT AND COLLECTIVE AGREEMENT

The Regulations include a list of interpretations which provide the framework for application. The key definitions are listed below in alphabetical order and as they appear in the Regulations:

adult worker

means a worker who has attained the age of 18.

calendar year

means the period of 12 months beginning with the 1 January in any year.

the civil protection services

includes the police, fire brigades and ambulance services, the security and intelligence services, customs and immigration officers, the prison service, the coastguard and lifeboat crew and other voluntary rescue services.

collective agreement

means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992, the trade union parties to which are independent trade unions within the meaning of section 5 of that Act.

day

means a period of 24 hours beginning at midnight.

employer

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

employment

in relation to a worker, means employment under his contract, and `employed' shall be construed accordingly.

night time

in relation to a worker, means a period -

(a) the duration of which is not less than seven hours and

(b) which includes the period between midnight and 0500, which is determined for the purposes of these Regulations by a `relevant agreement', or, in default of such a determination, the period between 2300 and 0600.

night work

means work during night time.

night worker

means a worker:

(a) who, as a normal course, works at least 3 hours of his daily working time during night time, or

(b) who is likely, during night time, to work at least such proportion of his annual working time as may be specified for the purposes of these Regulations in a collective agreement or a workforce agreement,

and, for the purpose of paragraph (a) in this definition a worker works hours as a normal course (without prejudice to the generality of that expression) if he works such hours on the majority of days on which he works.

SO/1/21

Appx A1

Page 2

(SMT 4/07)

relevant agreement

in relation to a worker, means a workforce agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer.

relevant training

means the work experience provided pursuant to a training course or programme, training for employment, or both, other than work experience or training -

(a) the immediate provider of which is an educational institution or a person whose main business is the provision of training, and

(b) which is provided on a course run by that institution or person.

rest period

in relation to a worker, means a period which is not working time other than a rest break or leave to which the worker is entitled under these Regulations.

shift worker

means any worker whose work schedule is part of shift work.

shift work

means any method of organising work in shifts whereby workers succeed each other at the same workstations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks.

worker

means an individual who has entered into or works under (or, where employment has ceased, worked under):

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual and any reference to a worker's contract shall be construed accordingly.

workforce agreement

means an agreement between an employer and workers employed by him or their representatives in respect of which the conditions set out in Schedule 1 are satisfied.

working time

in relation to a worker, means:

(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties

(b) any period during which he is receiving `relevant training' and

(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement and `work' shall be construed accordingly.

SO/1/21

Appx A1

Page 3

(SMT 4/07)

Working Time Directive

means Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time.

young worker

means a worker who has attained the age of 15 but not the age of 18 and who, in England and Wales, is over compulsory school age (construed in accordance with section 8 of the Education Act 1996) and, in Scotland, is over school age (construed in accordance with section 31 of the Education (Scotland) Act 1980).

Young Workers Directive

means Council Directive 93/33/EC of 22 June 1994 on the protection of young people at work.

- End -

FM/1/21 (SMT 4/07)

WORKING TIME REGULATIONS

OPT OUT AGREEMENT

Surname:

Forename:

Service Number:

Rank/Job Title:

Department:

Workers with more than one contract of employment with HFRS and/or any other employer(s) are required to complete a separate Opt Out Agreement with each individual employer.

Please read the `Information for Workers' leaflet before completing this form.

I hereby agree that the 48 hour limit on average weekly working time should not apply to me. I note that this will enable a maximum working time of up to 60 hours a week and a maximum cover/standby/call out of 144 hours a week inclusive of the 60 hours working time, over the agreed reference period(s).

I understand that this agreement:

· Is for an indefinite period*

· Will end on * (date to be chosen and inserted by the worker)

* Delete as appropriate

I understand that I can terminate this agreement if I no longer wish to work more than an average of 48 hours per week. I understand that to bring this agreement to an end, I need to give at least 7 days written notice of my intention to do so to the Employee Relations Team, Human Resources Department, Service HQ.

I agree to ensure that I will not jeopardise the safety of myself, other workers in the Fire Service, or the public by attending work when not in a fit state owing to an inadequate period of rest prior to the commencement of duty, and that I will ensure that any compensatory rest is undertaken within 7 days or at an absolute maximum within 14 days.

I agree to ensure that by undertaking other employment activities, this will in no way adversely affect my ability to perform in my main or secondary occupation(s) to the standard required by my employer(s). I also undertake that any changes to my circumstances increasing working hours for a reasonable period of time (over 4 weeks) either in existing work or by undertaking additional employment (subject to the provisions of SO/1/2/20 `Outside Employment') will be notified to my line manager at the earliest opportunity so a review of my working hours can be undertaken.

I understand that failure to attend for work or meet the terms of my contract of employment as a result of inadequate rest occasioned by working over 48 hours on average could result in the termination of one or more of my contracts of employment with HFRS or such other sanctions as may be considered appropriate to meet the Working Time Regulations and my health, safety and welfare and that of others.

I confirm that I have read and accept the conditions listed above.

Signed:

Date:

YOUR COMPLETED FORM WILL BE HELD ON YOUR PERSONAL FILE

YOU SHOULD RETAIN A COPY OF THIS FORM FOR YOUR OWN RECORDS

Appendix B

IMPLEMENTATION CHART WTR

WTR IMPLEMENTATION TIMELINE

AS AT 30 APRIL 2007

Hampshire Fire

and Rescue Service

* MARKETING AND EDUCATION THROUGHOUT *

Date

Actions

Comments/Lead

4 4 07

HRPG Advise Key Steps

Mid April 2007

Send out, WTR Service Order and Consultative Agreement and Outside Employment Service Order amendments for formal consultation

16 4 07

WPSG - Sign off WTR Working Group work

18 April 2007

Review Communications Strategy. Possible short note in Routine Notice pre-empting Extra

April 2007

Produce Draft Extra

April 2007

Produce Managers Toolkit. Include where documents need to be stored prior to inclusion in PDRS file (Post April 2008)

April 2007

Raise need for opt out and any expiry date plus report to be developed in SAP

April/May 2007

Put together a summary for Hot Topics

April/May 2007

Agree £1500 budget to support WTR Marketing

April/May 2007

Agree WTR to be included in PDRS from April 2007

April/May 2007

Put together General FAQs for website

- 2 -

Date

Actions

Comments/Lead

April/May 2007

Amend letter to go to Employers to release for RDS

8 5 07

SMT - Sign off WTR Working Group Work

11 5 07

Jun HR Committee Report to be handed in

15 5 07

Review Progress

16 5 07

Jun HR Committee Members Briefing

May 2007

Trial Toolkit in some areas

May 2007

Finalise: WTR Service Order and Consultative Agreement and Outside Employment Service Order and Issue

May 2007

Prepare and finalise presentation to Leaders Forum

May 2007

Draft and Finalise WTR Recruitment Guidance

May/June 2007

Amend Website

15 June 2007

HR Committee Jun 07 Present paper and issue Draft Extra

June 2007

Direct Communication to Managers Re Launch 1

June 2007

Finalise Toolkit and put online

18 7 07

Present at Leaders Forum

July 2007

Issue Extra

July 2007

Include WTR Recruitment Guidance in Recruitment Packs

July 2007

Opt out included in SAP start input, new and existing lists

July 2007

LAUNCH 1 SERVICE ORDERS WTR and outside employment plus supporting documentation. Interim filing need

July/August 2007

Instigate Contract of Employment changes for shells (wording drafted)

- 3 -

Date

Actions

Comments/Lead

July/August 2007

Prepare and finalise presentation to Managers Seminar

Autumn

Consider inclusion of WTR in Autumn Managers Seminars. Dates: 3 10 07, 16 10 07, 7 11 07 and 4 12 07

September 2007

Complete input of existing Opt out list and identify any needing re signing. Advise employees and Managers.

February 2008

Provide Documentation for PDRS folder

March 2008

Communications Brief Re launch 2

April 2008

LAUNCH 2 LIVE Include WTR in Induction / New Recruits Training

April - July 2008

Identify employees with outside employment subject to road transport WTR and discuss issues and agree way forward.