Last reviewed 23 August 2018
Directors have a key role to play in ensuring that their organisation maintains good health and safety practices in order to avoid prosecution.
This briefing will give you the essential background information and advice on implementing the necessary arrangements to avoid prosecution.
Employers have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees under the Health and Safety at Work, etc Act 1974. This duty includes ensuring that workers do not exceed the lawful working hours.
The Working Time Regulations 1998 (WTR), as amended, set the maximum working time at an average of 48 hours per week. The regulations also specify requirements for rest periods, work breaks and four weeks’ paid statutory holidays for most part-time and full-time workers, including freelancers and agency workers. The categories of worker excluded include:
workers at sea, including sea fishing
members of the armed forces, police and others in the civil protection services.
Workers who are required to work excessive hours face immediate health risks such as tiredness-related accidents in the workplace and longer-term health risks arising from physical and mental exhaustion and stress.
Employers have a key responsibility in protecting their employees from the ill effects of excessive work.
Working time falls under the Working Time Regulations 1998 (WTR). The regulations define “working time” in relation to a worker as any:
period during which the worker is working, at his or her employer’s disposal and carrying out his or her activity or duties
period during which he or she is receiving relevant training
additional period which is to be treated as working time for the purpose of these regulations under a relevant agreement.
Furthermore, the regulations place a duty on employers to ensure:
workers do not exceed an average of 48 working hours per week, including overtime
young persons (aged 16–17) do not exceed an average of 40 working hours per week including overtime with a further limit of eight hours work a day.
night workers are not to work more than an average of eight hours in each 24-hour period
night workers whose work involves special hazards or strenuous physical work or mental strain are to work at most eight hours in each 24-hour period (as opposed to an average eight hours in each 24-hour period)
night workers are offered a free health assessment at regular intervals
workers have a daily rest period of at least 11 consecutive hours in any 24-hour period (12 hours in each 24-hour period for young persons)
workers have one day off work each week
all workers are entitled to four weeks’ annual leave per year.
Employees over the age of 18 can opt out of the 48-hour week, however, this must be of their own choice, not following the coercion of the employer, and evidenced in writing.
Negative working culture
In a report published by the TUC in February 2018, it was estimated that 3.3 million UK employees regularly work more than 48 hours a week. Employees frequently working long hours points to a negative working culture in relation to productivity, performance, health, safety and wellbeing. It can also lead to an increase in accidents — which will require resources to investigate, as well as increased sickness absence, absenteeism and staff turnover.
Employees who regularly exceed their hours may not be using their time as effectively as they could and this may be for a variety of reasons: excessive targets and increasing workloads, lack of resources, lack of time management. Overwork could result in an increase in accidents due to employees suffering from physical and psychological health issues such as fatigue, depression, heart disease, anxiety and the risk of obesity.
Some believe that working extra hours shows commitment, productivity and can lead to promotion. However, it is important that the workforce does not equate long working hours as a sign of efficiency but rather are encouraged to work within the average of 48 working hours per week for their own health and wellbeing.
Directors must ensure that the Working Time Regulations 1998 (WTR) are fully implemented throughout the organisation and that managers are aware of the negative effects of overworking on employees and the organisation.
Directors should ensure that appropriate policies and strategies relating to hours of work, such as a flexible working policy, are in place to provide guidance and information to managers, who in turn can cascade the information down to all workers.
Typically, those in executive and senior management roles work the longest hours, therefore directors themselves must lead by example, taking appropriate breaks, being mindful of their hours of work and ensuring that management teams do also. This in term could have a knock-on effect on the workforce as a whole.
Relevant Working Time Regulations 1998 (WTR) cases include the following.
In List Design Group Ltd v Catley  ICR 686;  IRLR 14 a tribunal found the employer was in breach of the WTR due to failing to implement an adequate paid leave provision for its employees.
In Grange v Abellio London Ltd UKEAT/0130/16/DA this case concluded that employers have an active duty to ensure that workers can take a 20-minute uninterrupted rest break for each six-hour period worked.