Working Time Regulations may be under pressure, but the hours your employees work must be reliably recorded, says Donna Reynolds
Elon Musk has admitted to it. Jack Ma encourages it. At the time of writing, Theresa May is almost certainly doing it. A cursory glance at fellow commuters on any train or bus will reveal it is not exclusive to the rich and famous. What am I talking about? Working excessive hours or, at the very least, more than our contracted hours of work.
Hopefully, no-one reading this will be working 120-hour weeks and sleeping at the office as Musk has, but a few might just have hours of work that are, or have been on occasion, similar to the Chinese work practice known as ‘996’, where employees work 9am-9pm, six days a week. For Ma, this is the key to an efficient and optimal workforce and has called the opportunity to work in this way as a “blessing”.
It is true that the concept of clocking on and clocking off is no longer straightforward. Analysis by the TUC in 2018 revealed that commuting time has increased over the past decade, regardless of the method of travel. And how are we filling our commuting time? By working. A study commissioned by the University of West England, also in 2018, revealed that 54 per cent of rail passengers using Wi-Fi are sending work emails while others are using their own personal mobile phone connections for work purposes. The commute to work is an opportunity to get ahead before arriving at the office whereas work not completed during regular working hours can be completed during the commute home. In some cases, the result was an extra two hours of work per day.
The Working Time Regulations 1998 (WTR) do not permit workers to work more than 48 hours a week on a 17-week average (unless they opt out) and working time is defined as any period during which the worker is working, carrying out his duties and at the employer’s disposal. It is also any period during which the worker is receiving “relevant training” and any additional period in a relevant agreement (for example, a collective agreement, a workforce agreement or contract of employment). Thanks, in part, to the findings of these studies, there have been calls for the time spent dealing with emails while commuting to count as work and while there would be little dispute that the worker is “working”, the issue is whether the worker is also “carrying out his duties” and “at the employer’s disposal”.
WTR is silent on whether travel to and from a place of work should be considered working time. Non-statutory guidance suggests travelling outside normal working hours is not included because the employer has no control over how long the worker spends commuting or what they do, and for how long, during the commute. Therefore, as a general rule, the worker is not at the employer’s disposal until they reach the workplace, unless the employer was compelling them to do something.
For that reason, work taken home at the employer’s request will normally be treated as working time, which is very different from the worker trying to be diligent and organised with their workload or even the worker who has spent his or her working day procrastinating and is trying to make up for lost time, while commuting. Working from home (or the train) voluntarily and unpaid overtime undertaken voluntarily will not normally be working time.
That aside, there is the issue of how this time might be captured. In recent weeks the ECJ has held that Member States must require employers to set up “objective, reliable and accessible systems enabling the duration of time worked each day by each worker to be measured”. The difficulty is, the WTR only require an employer to record whether the weekly working time limits and night work limits are being complied with. It does not specially require all hours of work to be recorded (as well as being silent on the issue of daily or weekly rest). In practice, employers rely on other records such pay records in order to meet their obligations under the WTR. The future of the WTR may be uncertain (certain members of the cabinet previously called for them to be scrapped post-Brexit) but all employers would be well advised to record, in an objective, reliable and accessible way, the working hours (and breaks) of all their employees.
The time has come for employers to start watching the clocks.
Donna Reynolds is an Employment Partner at Blackadders