Rest Day Entitlement and ‘Operational Urgency'

SECTION 1 - Introduction

The States approved the Employment (Jersey) Law 2003 on 8 th July 2003 and it has been approved by Privy Council and registered in the Royal Court. The Law currently awaits an appointed day.

It is envisaged that the basic employment legislation will come into force early in 2005. This is due to the following factors;

• the subordinate legislation must be drafted,
• a political promise was made that the Employment Relations Law would be enacted on the same day as the Employment Law,
• a political promise was made to industry that a year's notice of the Minimum Wage rates would be given.

The Committee has asked the Employment Forum to consult on the remaining two areas on which subordinate legislation is required. The subject of this consultation paper is one of those two issues, the other is unfair dismissal in relation to fixed term contract workers, on which a separate consultation paper is available.

The main focus of this consultation is the effect of the uninterrupted rest day provisions on certain sectors and what regulations might be required to allow them to continue to operate effectively and provide necessary services. This consultation also gives you the opportunity to comment on other areas of the provisions relating to this issue.

The following report outlines the issues that you should take into account in considering your response.

SECTION 2 - The Committee's intention

As with all of the proposed employment legislation, a step-by-step approach was recommended. Complex legislation with detail such as is to be found in the UK Working Time Regulations was not the Committee's desire and it was hoped that a simple framework of provisions dealing with the issues of paid holiday and rest day entitlement could be created. Under the proposal, the onus was on both employers and employees to "make the system work" in the spirit in which it was intended. However the impact and workability of any such legislation would have to be monitored and if shown to be unsuccessful or unworkable in anyway, the provisions would have to be open to review.

The driving force behind the proposed legislation was the recognition that employees should, as a moral standard, be entitled to rest days from work. There were also other considerations which strengthened this moral approach, Health and Safety being of importance. As stated in the Report and Proposition taken by the Committee to the States (P.99/2000), no employee would work to the best of their ability if breaks from work were not permitted, which could lead to accidents. Although Jersey already has Health and Safety Legislation requiring employers to take reasonable steps to ensure the health and safety of their employees, it was felt that greater emphasis should be placed on the issue of breaks from work through the introduction of legislation establishing minimum rest day entitlement.

In contrast to the complex UK legislation, the proposal for Jersey was simply that workers should be entitled to one rest day per week and there was no intention to specify rest periods and shift breaks on a daily basis.

The Employment and Social Security Committee acknowledged that there would be a need for flexibility to accommodate part-time and shift workers and to allow for surplus of activity at peak times in the Island's different industries (e.g. Christmas and sales in the retail industry, crop picking and sowing in the agricultural sector, peak week-ends in the tourism industry and Christmas in the restaurant trade). The Committee wished to introduce legislation that was workable, as far as possible, to all employers and employees. It did not wish to introduce provisions that become meaningless by virtue of the number of exceptions or derogations.

As in the UK, it was proposed that the one day rest period should be a 24 hour period of uninterrupted rest and that this allowance might be averaged out over a two week period, so that the rest days could be taken as two 24 hour rest breaks or one 48 hour rest break in a fortnight.

The entitlement to a rest day means that employees should be given the right to a weekly day off, but are not obliged to take it. Similarly, the employer would not have to make sure that employees were taking their rest day. However, if an employer wished to ensure that an employee takes his rest day and did not work on that day for another employer, it would be up to the employer to make clear that expectation in the contract of employment, to be agreed by the employee.

Breach

Breach of any contract terms in connection with rest day entitlement would bring an employer's grievance and discipline procedures into play. The services of JACS would be available to those who needed them and wished to use them. All claims arising would be heard by the Employment Tribunal.

The dismissal of an employee for refusing to work when they were entitled to a weekly rest period would be grounds for automatically unfair dismissal, as the individual would be “asserting a statutory right” in such circumstances.

It is likely that the majority of such claims would be heard by a sole Tribunal panel member in accordance with the provisions of the Employment Forum's Recommendation on Enforcement Issues. If a complaint was upheld, it was intended that the arbitrator would be able to impose a fine on the employer (as is the case with breaches of the provisions of the current Payment of Wages Law) and make an award of compensation or outstanding pay to the employee, as appropriate.

As well as contractual duties, employers are also subject to a common law “Duty of care” towards their employees, including the duty to take reasonable steps to safeguard employees' health and safety. A requirement to work such hours or periods of uninterrupted work which results in injury to an employee (physical or psychological) could give rise to a claim for damages on that basis.

SECTION 3 - OTHER JURISDICTIONS

EUROPE

Many European Directives have been adopted in the areas of employment law and health and safety. Directives are binding on the Member States, and can in some circumstances give rise to directly enforceable rights for individuals.

While it is open to an employer and employee to agree whatever contract terms they choose relating to time off, many jurisdictions provide that minimum standards must be met in these areas.

Within the European Union, all Member States are required, as a minimum, to have laws which adhere to the EC “Working Time” Directive. In addition, the European Convention on Human Rights protects a person's “right to respect for his private and family life”. It is arguable that not allowing an employee sufficient time off to enjoy a “normal” family life could breach this fundamental principle.

The EC “Working Time” Directive

The Council of the European Union adopted the European Working Time Directive (93/104/EC), on “certain aspects of the organisation of working time”, in November 1993. This was essentially a health and safety measure aimed at protecting workers against adverse effects on their health and safety caused by long working hours, or working without adequate rest. It set down minimum standards relating to workers' maximum weekly working hours, night work and shift work, rest breaks and rest periods and annual leave entitlement.

THE UK

Working Time Regulations

The regulations provide basic rights and protections, including;

• Limit of an average of 48 hours work per week;
• Night workers can be required to work a maximum of 8 hours, on average, in 24 hours;
• a right to 11 hours rest per day;
• a right to an in-work rest break if the working day is longer than 6 hours;
• a right to 4 weeks paid leave per year;
• a right to a day off each week.

The basic rule in the UK with regard to rest days is that workers are entitled to an uninterrupted rest period of at least 24 hours in each seven day period. However, an employer is allowed to average this over a two week period, so that workers may take off two separate 24 hour periods in a fortnight, or take a 48 hour rest break in a fortnight.

The Regulations set out detailed rules as to how the relevant 7 day or 14 day period is to be measured, including when it is deemed to begin.

The regulations have been in force since 1998. They were amended in 1999 to reflect some concerns which arose in their practical application, and further amendments are required during 2003 and 2004 because the Directive has recently been amended by the Council of the European Union.

The regulations are very broad in their coverage, in that they apply to all “workers” over the minimum school leaving age; a definition which covers not just those employed under a contract of employment, but also those who work under other forms of contract (for example, agency and temporary workers, casuals and freelancers). The genuinely self-employed, however, are not covered. Young workers, over compulsory school age, but under age 18, are subject to extra rights and protections.

The UK Working Time Regulations state that working time is when someone is " working, at his employer's disposal and carrying out his activity or duties ". This does not include rest breaks when no work is done. On 3 October 2000, the European Court of Justice gave judgement in a case concerning the status of 'on-call' time. The judgement related to doctors employed in primary health care teams, though a similar approach may now be taken in other areas. It indicated that on-call time would be classed as“working time” when a worker is required to be at his place of work. When an on-call worker is permitted to be away from the workplace, and accordingly free to pursue leisure activities, on-call time is not classed as “working time”.

Special cases

There are a large number of cases where the basic right to a weekly rest day (or equivalent) is excluded or modified. The right does not apply to:

• shift workers who are changing shift and cannot take the weekly rest period between the end of one shift and the start of the next;
• workers whose work is split up over the day (for example, cleaners);
• workers who work far from home, or who work at different places of work with some distance between them (so that, for example, they may want or need to work longer hours to complete the work);
• workers engaged in security and surveillance activities requiring a permanent presence to protect property or people (for example, security guards or caretakers);
• workers whose job requires continuity of service or production (including, for example, certain work in hospitals, residential institutions, prisons, docks, airports, media companies, postal services, public utilities and services, industries where work cannot be interrupted, and agriculture);
• workers subject to foreseeable surges of activity (that is, busy peak periods, such as in agriculture and tourism);
• workers' whose activities are affected by unforeseen emergencies, unavoidable exceptional events, or accidents.

In addition, employers and workers can vary or exclude the basic statutory right to rest days, via a collective or workforce agreement (which must satisfy certain criteria), the relevant terms of which must be incorporated into the individual worker's contract.

Compensatory rest

Where a worker is required by his employer to work during a period which would otherwise be a rest period or rest break, the employer must, wherever possible allow him to take an equivalent period of compensatory rest, except in exceptional circumstances. However, the employer must still afford the worker protection as may be appropriate in order to safeguard their health and safety.

The DTI's guide to the UK's provisions states that compensatory rest should be provided within a reasonable time: Two months is considered a suitable period to compensate for weekly rest periods.

Enforcement of rights

A worker who is denied entitlement to the statutory weekly rest period or paid annual leave, or who is not paid any amount due under the Regulations, may bring a complaint to an employment tribunal. In addition, a worker may complain to the employment tribunal if he or she was subjected to a detriment or dismissed for refusing to work when they were entitled to a weekly rest period, or refusing to forgo statutory annual leave. Dismissal of an employee on these grounds is treated as “automatically unfair”.

If the complaint is upheld, the tribunal must make a declaration to that effect, and may award compensation or outstanding pay to be paid by the employer to the worker where appropriate.

Enforcement of the regulations is split between two bodies. The entitlement to rest periods and breaks and paid annual leave are enforced through employment tribunals, although ACAS initially try to resolve any disputes. The working time limits are enforced by the Health and Safety Executive and local authorities.

EC Directives

As a member of the European Union, the UK is required to implement the Directives adopted by the European Council.

The EC Directive was implemented by the Working Time Regulations 1998. These provisions did not, however, apply to workers employed in the transport sector (including air, rail, road and water), those working in fishing or other work at sea, and doctors in training. It was felt that these areas required specific legislation to accommodate working time measures. The Regulations also did not apply to activities of specific services, such as the armed forces, the police or civil protection services, where these “inevitably conflict” with the Regulations.

The exclusions have been reviewed at European level, and specific EC legislation covering these groups has either been adopted or is close to adoption. In their October 2002 consultation paper, the UK Government proposed to amend the Working Time Regulations to cover those sectors of the workforce that were excluded, namely road, rail, air, sea and inland waterways transport, sea fishing, offshore work and the activities of junior doctors. It was proposed that new regulations would come into force on 1 August 2003

A new working time directive, known as the Horizontal Amending Directive (2000/34/EC), was adopted on 1 August 2003 which, together with three further sector specific directives (the Road Transportation Directive, the Aviation Directive and the Seafarers Directive), now extends working time protections to the previously excluded sectors, including doctors in training, from 1 August 2004, with the exception of the weekly working time limits which will be phased in over a further transitional period.

SECTION 4 – Employment Forum's Consultation, 2001

Introduction

The Forum's consultation paper, “Annual Leave and Weekly Rest Days,” was published in July 2001. The document provided a questionnaire and information on the relevant issues, which was distributed to all those on the Employment Forum's consultation database.

RESPONSES

Rest Day entitlement

The questionnaire stated that the Committee proposed one rest day of 24 continuous hours per week and respondents were asked whether they envisaged any particular problems arising in their industry with regard to this. 84% of respondents said they did not and 14% felt that this proposal could cause problems. Of the 14%, comments were received suggesting that 24 hours is not sufficient rest to be safe or acceptable, a five day week is more typical, and that it should be clear in the Law that 24 hours rest is the minimum entitlement.

Specified time for rest days

Two thirds of respondents (67%) felt that there should not be a specified period established on which rest days should be provided or taken. 9% felt that there should be a period specified.

Various views were expressed, including that a flexible system should be put in place which manages effectively the particular needs of individuals and organisations, it should be the employees ‘normal' day off, the provisions should not be made unnecessarily complicated and that it is important to ensure that the rest period is ‘uninterrupted'.

Averaging out rest days

58% of respondents agreed that provision should be present to “average out” rest days and 28% stated that this would not be appropriate.

Comments received on this issue included a number of concerns: expressing the need for flexibility; that it should not be complicated; that the purpose of “rest days” should not be lost; emphasizing the importance of the health and safety of employees; and that flexibility in arranging rest days would be of mutual benefit to employers and employees. It was suggested that provisions should be;

• subject to the individual industry and personal requirements
• a voluntary option through negotiations with the relevant trade unions or by agreement in contracts of employment
• averaged over no more than 2 weeks or the rest and health benefit would be lost

Exclusions for certain categories of workers

Two thirds of respondents (65%) did not feel that certain categories of workers should be excluded from rest day entitlement. However, 16% of respondents highlighted emergency and essential services as categories of workers who should be considered as “special” for the purposes of the rest day provisions. In addition, other sectors with particular needs were also mentioned, such as farm workers at certain times of the year.

CONCLUSIONS

The consultation on the issue of holiday entitlement and rest days did not generate a great deal of debate at the time and was seen as one of the less contentious issues.

There was acceptance that statutory provision should be incorporated into legislation regarding rest days and recognition of the importance of the Health and Safety of workers in relation to rest days, although some felt that provisions were necessary to provide flexibility in sectors which have unusual needs.

RECOMMENDATIONS

Having considered the results of the consultation exercise, the Forum recommended that all employees should be entitled to one statutory rest day per week, which should be a continuous period of 24 hours. A week should be defined in the terms and conditions of employment, but if the contract is silent on this issue, a week should run from Sunday to Saturday. Protection should be granted to all employees over the age of 16 and there should be no upper age limit specified in the legislation.

It is not envisaged that sub-contractors or self-employed workers serving several contractors or clients should be covered under this legislation, but the Forum wanted protection for those who routinely work for one particular employer and a relationship similar to a ‘master and servant' has evolved. Voluntary workers employed by charitable organisations or fund raising bodies should be excluded from this provision.

The Forum's recommendations have now been incorporated into the Employment Law.

Flexibility of rest day provision

The majority of those who took part in the consultation exercise were of the opinion that provision should be present for the rest day to be averaged out over a two week period.

Having considered the health and safety concerns expressed by some respondents and the need for the legislation to ensure provisions are workable in all industries, the Forum recommended that the ability to average out the weekly rest day over a two week period should be present in legislation, but that nothing should remove an employers duty of care over an employee, and therefore it should not be possible to average over more than two weeks. Such a duty is subject to Common Law and includes the duty to take reasonable steps to safeguard an employee's health and safety.

SECTION 5 - The Employment (Jersey) Law 2003

With regard to weekly rest periods, article 10 of the Employment Law states;

This part of the law is a straightforward approach to the working time directive. It sets a minimum standard but gives the employer the ability to average the rest period over a two week period. This was derived from consultation with employers, but at the same time had regard for the employer's ‘duty of care' and best health and safety practice. It is ‘light touch' in comparison with other jurisdictions, without any requirement regarding the hours worked on any given day.

There is no criminal offence for breaching this standard, so if an employee agrees to work on his rest days, as opposed to being required to do this, then he is unlikely to assert his statutory right. The aim of this part of the law is to put the onus on the individual to decide whether they are capable of working for long periods without uninterrupted rest. It must be emphasized that the employee has the right to take their 24 hour rest period, but is not obliged to take it, and the employer is not obliged to ensure that the employee does so, but must make sure that employee can take their rest period.

Article 104 allows for additional regulations to be made for the operation of the law and it is possible to include provisions here regarding the rest day provisions in situations of ‘operational urgency'. The relevant article is as follows;

104 Regulations and Orders

SECTION 6 – Issues to consider

There are three issues of concern;

1. Although rest periods may be averaged over two weeks, the law does not define how the employer is to obtain the employees agreement – it was assumed that this would be specified in the employee's contract. In the absence of clarification in the legislation, there is concern that work patterns would be difficult to organise if the employee could refuse to average their rest days over two weeks and revert to their statutory entitlement to one day off per week.
2. The law states that rest days must be ‘uninterrupted', but it is not specified whether time spent on-call or standby counts as uninterrupted.
3. In some organisations, employees are required to work their rest days in order to meet operational requirements and cover for operational urgencies, not just in ‘emergencies'.

Issue 1

The Committee's intention was to make the rest day provisions workable for all employers and employees and to make it easier than the rest day provisions in the UK. But some sectors have indicated that it is not straightforward to apply, in that shifts are difficult to plan when the employer must obtain the employees agreement to average rest days over two weeks, as statutory rights would take precedence over agreements in a contract or collective agreement.

If the law allowed the employer to decide whether the employee is fit to work on their rest day and average their breaks over two weeks, then the employer would carry the full liability in a health and safety claim, whereas the law as currently drafted puts the greater responsibility on the employee in this matter.

If regulations or guidelines were to be drafted regarding the methods an employer may use to obtain an employees agreement to average their rest days over two weeks, additional issues would have to be considered, including;

• the maximum period for which an employee can agree that their rest days will be averaged;
• notice from either party to amend the agreement;
• whether it should only be possible for an employee to agree in their own employment contract, of if a collective agreement would be appropriate.

Issue 2

Concerns have been expressed by various organisations about the provision for ‘uninterrupted' rest days. It is considered that this could pose serious problems for call-out and standby arrangements, which guarantee uninterrupted provision of service and emergency services in various organisations, and also the employers' right to require emergency overtime in crisis situations.

The Working Time Directive in the UK contains a more complicated test than the Employment (Jersey) Law, 2003 to establish whether a rest period is uninterrupted. There have however been recent decisions in the UK which indicate that, in interpreting the Working Time Directive, a period of time when a person is on-call at home would not be deemed to interrupt the rest period in question. Given that the UK law applies a different test though, a Jersey Tribunal may not consider the UK position as persuasive authority in interpreting our law. It may therefore be preferable to clarify this point in regulations.

Issue 3

The Forum is concerned that these issues were not strongly represented during the consultation. However it is recognized that there may be occasions when “operational urgency” will require an employee to work during their normal rest periods, although it is expected that such occasions would be exceptional rather than regular.

It is considered that the Special Circumstances , in the UK Working Time Regulations might provide a reasonable basis for operational urgency exemptions from the Jersey Law. In such periods of operational urgency the rest periods would be suspended, although they should be provided for at a later date.

It is necessary to consider what type of business requirements should be included in the definition of ‘operational urgency' in relation to different industries in Jersey as it is different to the UK in many respects, for example, emergency services staff cannot be ‘borrowed' from equivalent nearby services to cover in a crisis.

It has been pointed out that the rest day provisions conflict with regulations in some employees contracts, which specify that staff can be required to work overtime hours to meet operational requirements, such as the Prison Officers Regulations. It is likely that other employers will also be in this situation, such as the Emergency services, whose contracts would specifically cover crisis or emergency situations.

SECTION 7

Employment Forum Survey

Rest Day Entitlement and Operational Urgency

Instructions

• Please tick the appropriate box to indicate your preference.
  
• Please use the comment boxes to provide any additional comments or views.

PLEASE GIVE AS MUCH DETAIL AS POSSIBLE IN YOUR RESPONSES, INCLUDING EXAMPLES WHERE APPROPRIATE.

ISSUE 1

1. Do you envisage any particular problems arising regarding the provision of one uninterrupted rest day of 24 continuous hours in each 7 day period?

Yes No Unsure

Please give reasons for your response

2. Do you envisage any particular problems arising regarding the provision to provide rest periods averaged out over 2 weeks (i.e. providing either 1 period of 48 hours or 2 periods of 24 hours)?

Yes No Unsure

Please give reasons for your response

3. Do you envisage any particular problems arising regarding the requirement for the employer to obtain the employees consent in order to average the rest period over 14 days?

Yes No Unsure

Please give reasons for your response

4. What method would you prefer for the employer to obtain the employee's consent to average their rest days over 14 days?

Individual employment contract only

Individual employment contract or collective agreement

Other method, please specify below

5. Should it be possible for the employer to require the employee to accept rest days averaged over 2 weeks without having to obtain their consent?

Yes No Unsure

Please give reasons for your response

ISSUE 2

6. Please indicate if you envisage any problems arising for the operation of your business if the ‘uninterrupted' rest day provisions require that on call and standby time is treated as follows;

a) being on call or standby always interrupts a rest day, even if the employee is not called out to work during that time.

Yes No Unsure

b) being on call or standby only interrupts a rest day if the employee is called out to work during that time.

Yes No Unsure

c) being on call or standby only interrupts a rest day if the employee is called out to work during that time, or if required to remain at or near the place of work (away from home) during that time.

Yes No Unsure

Please give reasons for your responses to question 6.

ISSUE 3

7. Would a temporary suspension of the provisions for operational urgency, along the lines of the UK, provide enough leeway to alleviate your concerns? (see page 6 for ‘special circumstances' in the UK)

Yes No Unsure

8. Tick as many of the following that you agree should be included in the definition of ‘operational urgency'.

A worker works far away from where he or she lives, or he or she constantly has to work in different places making it difficult to work to a set pattern.

The work involves security or surveillance to protect property or individuals.

The job requires round-the-clock staffing as in hospitals, residential institutions, prisons, production companies, public utilities transport services or in industries where work cannot be interrupted on technical grounds.

There are busy peak periods, such as may apply seasonally in agriculture, retail, tourism and postal services.

An emergency occurs or something unusual and unforeseen happens.

Others, please specify below

9. Should the law require employers to provide compensatory rest wherever possible after the employee has worked a rest period?

Yes No Unsure

Please give reasons for your response

10. If there were regulations on providing compensatory rest, what details should be included? Tick all those you agree with.

There should be a time limit within which compensatory rest must be provided.

Compensatory pay may be provided instead

The employer and employee should agree on the conditions for compensatory rest or pay.

Other details, please specify below

11. In which specific jobs, departments or industries do you consider that there will be difficulties in complying with the rest day provisions, and why?

12. Do you have any other comments, concerns or suggestions regarding the rest day provisions that have not been covered by any of the previous questions?

13 . Would you allow your comments to be quoted by the Employment Forum in the reporting of the results of this consultation? Please note, if you agree, no reference will be made to any individual, undertaking, organisation or association .

Yes No

14. If you would be willing to discuss you responses further with the Forum, please provide the following information. This is optional.

Name

Organisation/association

Address

Phone number

Email

Please print, complete and return this questionnaire to the Department by Friday 28 th May 2004.

Either;

• post in the enclosed pre-paid reply envelope, or
• by email to K.Morel@gov.je , or
• by fax to 01534 280209, or
• post to the following address

c/o Kate Morel
Employment Forum Secretary
PO Box 55
Philip Le Feuvre House
La Motte Street
St Helier
JE4 8PE.

Thank you for taking the time to complete this survey.

Richard Plaster

Employment Forum Chairman.