Good news for the over-worked
10 June 1998
...but bad news for firms? Georgina Keane looks at new legislation that could end the long hours worked by lawyers. Georgina Keane is head of em-ployment at Richards Butler. From 1 October all employers, including solicitors, are under an obligation to comply with new working time regulations.
Inexplicably, the regulations, issued on 30 July, only became available towards the end of August. Ignorance of the law is no defence - particularly not for lawyers - which makes the short timetable even more lamentable.
The regulations impose a 48-hour maximum working week, significant restrictions on night working, requirements for detailed records, health assessments and a host of other obligations.
Workers must be given a minimum of 11 hours' rest each day, plus one day off per week. All employees, including agency workers, must have three weeks' paid holiday in 1998-99, and four weeks thereafter.
It will not be possible to pay in lieu of the statutory minimum holiday entitlement, or insist on staff holding over their entitlement to a following year.
It is the legal responsibility of firms to ensure that all staff covered by the new regulations do not work more than the relevant hours and have the appropriate rest breaks by putting proper policies and practices in place. Complex rules determine hours worked, holidays, exclusions and obtaining employees' agreement to work longer hours.
Great fun can be had interpreting all this (for employment lawyers at least) - even basic items such as what counts as "work". Lunch with a friend will not count, while lunch for business purposes will.
It is uncertain whether the regulations will have a great impact on fee earners, particularly senior assistants and salaried partners.
This is because the 48-hour-week, night work restrictions and rest breaks do not apply to "a worker where, on account of the specific characteristics of the activity in which he is engaged, the duration of his time is not measured or predetermined or can be determined by the worker himself, as may be the case for managing executives or other persons with autonomous decision-taking powers".
The scope of this will need to be decided by the courts. Law firms will want to examine the use of individual opt-out agreements. Agreements can be made between an employer and an individual worker to disapply the 48-hour weekly working hours limit.
Such an individual agreement (which could be contained in the contract of employment) would have to be recorded in writing. In the absence of any specific termination provision for the opt-out, seven days only will apply; otherwise the agreement can specify notice up to a maximum of three months.
The worker cannot be penalised for cancelling this "opt out" on the relevant notice. Such agreements are only valid if proper records are kept of the agreement and of its terms and all the individual's hours worked - failure to do so renders the agreement invalid.
Apart from the 48-hour limit, most other provisions can be modified by a collective agreement or a "workforce agreement", which is a novel concept.
A "workforce agreement" is an agreement between an employer and workers' representatives. However, it is difficult to imagine a number of firms embracing the concept of employee representatives which are necessary for workforce agreements.
There are a number of requirements for such an agreement, set out in Schedule 1 to the regulations, which are necessary for validity. The main ones are:
the agreement must be in writing and state a start date and it cannot last more than five years;
it must apply to all workers employed by a particular employer not covered by a collective agreement;
(if more than 20 staff) the agreement must be signed by the elected representatives; and
all relevant members of the work force must be given a copy of the agreement and such guidance as may be reasonably required to understand it.
Apart from paid holiday leave, it will be possible for employers and employees to agree to work outside the parameters of the working time restrictions.
The 48-hour limit can only be removed by an individual agreement. However, you need either a "workforce" or a collective agreement to relax other restrictions such as calculating average working time over a period longer than 17 weeks, rest periods and onerous night work restrictions.
The Act's provisions can be enforced by individuals and the Health and Safety Authority. In the event of a complaint against an employer for failure to comply with the regulations, an industrial tribunal is given power to award such amount of compensation as it considers "just and equitable in all the circumstances".
If the employee is dismissed for asserting his statutory rights under the regulations, the dismissal will be automatically unfair.
But how many aspiring young solicitors will seek to assert their legal rights so that they do not work more than 48 hours a week and get 11 hours off per night? How will this affect the pressure on chargeable hours?
Perhaps firms should be primarily concerned with ensuring that they have flexible and sensible working practices, not because of the law but so as to recruit and retain the best staff.