Legal update

Annabel Morris, Skills for Health - Workforce Projects Team project manager, looks at the legal implications of WTD.

How is the WTD enforced?
WTD 2009 is a ‘must do’ change for trusts as it is enshrined in European law and in UK law through the Working Time Regulations (WTR). However, the question often arises, ‘What happens if we don’t implement it?’ This article aims to outline the way the WTR are enforced and the wider potential legal implications of breaching the regulations.

There are two main methods of enforcement of the WTR - through the employment tribunals and through the Health and Safety Executive (HSE) in conjunction with the criminal courts.

48 hour limit

Employers must take reasonable steps in line with health and safety requirements to ensure that the 48 hour average weekly working hours limit is complied with (Working Time Regulation 4 (1)).

They also have a responsibility to keep records of their compliance with the 48 hour limit (Regulation 9). Failure to do either of these would amount to an offence (Regulation 29). HSE inspectors have powers to issue improvement notices and failure to comply with these can lead to a conviction. This could mean a fine or summary conviction (at a magistrates court) limited at the statutory maximum level or up to three months in prison but if convicted on indictment (at Crown Court) this could lead to an unlimited fine and/or two years imprisonment.

HSE investigations into fatalities at work can also involve discovering a combination of long hours and unsafe practices which lead to a fine. In one case in 2003 an electrical firm was fined over £100,000 because a fatality occurred when electricians were working long hours, risk assessment was poor and there were unsafe practices.

Rest Requirements

The rest requirements are enforced through employment tribunals (as are requirements for annual leave, among others). The rest requirements are:

• 11 hours continuous rest in every 24 hours,
• Minimum 20 minute break when working time exceeds six hours
• 24 hours off in seven days or 48 hours off in 14 days.

(Regulations 10, 11 and 12)

If it is not possible to provide these rest breaks then compensatory rest should be given. Employers must ensure that workers are able to take rest breaks. If a worker finds their employer is unable to grant these rest breaks or compensatory rest they can take their case to an employment tribunal where a declaration and/or a compensation award may be given (Regulation 30).

If a worker wishes to bring a complaint to the tribunal, the complaint must be presented before the end of the three months beginning with the date on which it is alleged that the right should have been permitted to be exercised. The award will be what the courts consider ‘just and equitable’ taking into account the employers default in refusing to permit the worker to exercise the right to compensatory rest and any loss sustained by the worker which is attributable to the deprivation of compensatory rest.

Detriment and unfair dismissal

If employees feel they have suffered a detriment (ie they have been discriminated against) because they have asserted their rights under the WTR they can take their case to an employment tribunal (Regulation 31).

A dismissal is automatically unfair if the reason is that the employee asserted their rights under WTR. For example, if an employee is dismissed because they refused to work more than the average 48 hour a week limit then this dismissal is automatically unfair. It is also unfair if an employer dismisses an employee because they have brought enforcement proceedings under the WTR or they have alleged that the employer has infringed the employee’s rights. (Workers who are not employees are not entitled to this protection of unfair dismissal.)

Negligence

Breaches of WTR can influence a court when looking at an organisation’s liability for negligence. In the case of Eyres v Atkinsons Bathrooms Ltd, a kitchen fitter working long hours without proper rest breaks lost control of his vehicle on the way back from a job and was seriously injured. It was noted in the court that the employer’s philosophy was summed up by the way Mr Atkinson had stated that “Eating’s cheating” and “You can sleep when you’re dead”. Eyres sued his employer in negligence and won. The employer was held to be negligent as it had failed to provide a risk assessment and had not got a system for changing drivers to prevent the employee working without appropriate rest breaks. (The driver was held to be contributorily negligent as well because he did not wear a seatbelt and should also have realised he was at risk of falling asleep at the wheel). This illustrates that a breach of WTR can be looked at as evidence when assessing whether an employer has been negligent.

Another way working long hours is linked to employer’s duty of care to employees, is in stress and psychiatric harm negligence cases. The main test for this was established in Barber v Somerset CC.

To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

In Hone v Six Continents Retail Ltd an employee who suffered psychiatric harm from stress was working 90 hours a week, refused to sign a 48 hour opt out and had repeatedly asked for assistance with their workload. The refusal to sign an opt out was a factor in establishing that the employer should have foreseen the psychiatric harm and taken steps to prevent it.

As well as the possibility of legal action in negligence if not addressed, stress related illness affects the productivity of an organisation. A total of 13.8 million working days were lost to work-related stress, depression and anxiety in 2006/07. 2006, 30 million working days were lost in the UK to occupational ill health.

There is also the possibility that in a clinical negligence case the fact that the healthcare professionals involved were working in breach of WTR could be used as evidence that the employer was negligent. However, an employee working in breach of WTR would still be covered by NHS indemnity - this has been confirmed by the NHS Litigation Authority in a letter to trusts last year.

Corporate Manslaughter and Corporate Homicide Act 2007

The Corporate Manslaughter and Corporate Homicide Act 2007 is now in force. This means an organisation can be convicted of manslaughter if the way its activities are managed causes a person’s death. Organisations will need to demonstrate that health and safety is managed appropriately by their senior management team to comply with this legislation. As the hours limits of the WTR is enforced by the HSE, then compliance with the regulations may be looked into if a workplace death is being investigated.

Managing the risks

To manage the risk of legal challenge, 48 hour rotas for junior doctors which allow the necessary rest breaks should be implemented by August 2009. The Workforce Projects Team is piloting solutions to WTD 2009 and several trusts have already implemented a 48 hour week for their junior doctors.

For more information on these pilots and advice on achieving WTD 2009 please see our website www.healthcareworkforce.nhs.uk/wtd

This article does not constitute legal advice. Trusts are advised to contact their lawyers for advice on particular issues in relation to the WTR.

Reference/further information

For a full list of all references, please view the full article www.healthcareworkforce.nhs.uk/wtd