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Is Time Being Called on Working Time? 

Adrian Poole and  Tim Dallinger ponder the laws around working time, how they are likely to evolve and what care providers need to do to stay on top of developments. 

Time, they say, is a wonderous and mysterious thing. It’s not a constant but ebbs and flows. Those who have read (or in the case of one of the authors of this article tried to read!) a Brief History of Time will also be aware that it distorts from point to point. Even at a more practical level, there never seems enough time in the day to do the things we need to do, yet a few minutes of peace can seem like a millennium. Like watching paint dry or a kettle coming to the boil.  

And so, it is perhaps unsurprising that the laws regulating working time are less than straightforward. Indeed, like the concept of time itself, they have developed and expanded. Undoubtedly, had Professor Stephen Hawkins been a lawyer, he could have made insightful observations over that process and what it means to us all. 

Whilst the concept of working time really became an area in its own right with the Working Time Regulations 1998, the genesis of controls on the level of work required of workers goes much further back. Perhaps the most notable example is the Holidays with Pay Act 1938, giving certain workers one week’s paid holiday each year (lucky them!). The current regulations of course provide for much more than this and include daily as well as weekly rest breaks in addition to annual leave. 

The UK has never been entirely comfortable with the State interfering too much with an individual’s ability to work. A prime example of this is the 48 hour opt-out whereby an employee can and often does agree an opt out from the 48-hour working week but retains the right to opt back in on the giving of notice. This was due to be a short-lived, transitional arrangement but has remained as a domestic deviation from the European directive ever since. 

In the field of Care there are other concessions. Like other ‘special cases’ there is the possibility for the sector to diverge from the requirements of daily and weekly rest where continuity is required and when compensatory rest can be provided. Hence the rules do not remain hard and fast which in many cases has created confusion and conflict within the workplace. So too is the often-confusing relationship between working time and work for the purposes of the national minimum wage. It is all too easy to assume that national minimum wage applies to all working time when this simply isn’t the case. Take for example travel by domiciliary carers to and from home at the start and end of their shifts (not subject to NMW but working time nonetheless) and the intricate case law in respect of night working. 

But where are we now? There are several factors which are likely to change the face of working time and its regulation moving forward.  

First, Brexit presents the UK with an opportunity to decide what is a reasonable working week, what counts as working hours and what are the maximum hours that an employer can insist that a worker works. It remains to be seen how high up the government agenda this gets and what the appetite for change is.  

Secondly, the cost-of-living crisis will see incomes fall and families desperate to make up that shortfall by taking on more hours. Arguably, this might assist to some degree with the labour shortage in care, but its not a sustainable solution to expect care workers to work themselves into the ground. Not only would this have devastating effects on the individual but will surely not provide service-users with the welfare they require. Moreover, many more might decide to leave the sector altogether in favour of less demanding but better hourly paid work elsewhere. It has to be remembered in this context that employers have a responsibility to ensure the health and safety of their workers. If excessive working hours, even if agreed with or at the behest of the employee, have a potentially detrimental effect on employees then employers need to act. Importantly, under current legislation, an opt out from the 48 hour working week does not mean unrestricted working hours but an average maximum of 78 hours per week since there is an entitlement to a minimum of 90 hours weekly rest. 

Thirdly, there is undoubtedly a general culture shift away from fixed hours of work. Whilst the care sector of course had to struggle on through the pandemic, the broader change in approach towards work/life balance is difficult to deny, particularly amongst the young. The extent to which this truly manifests itself when there are bills to be paid is debatable, though that expectation is likely to become the new norm, assisted by more family-friendly legislation in the longer term. This of course could be good news for the sector; one of its strengths is the abundance of work and thus the flexibility of hours available to the individual. Here again, though, that benefit may be curtailed by the requirement to have a dependable income. 

Overall, we could well see a shift in emphasis away from regulated hours of work to a more responsibility-based approach. There are problems with this when the pressures of squeezed family finances make working excessive hours just too irresistible or when unscrupulous employers could take advantage. However, this is structured, care providers will still need to keep a watchful eye on the hours undertaken by staff to fulfil their duty of care to staff and service-users alike. Relying on exhausted staff is bound to constitute a safeguarding risk. So, in tackling a changing dynamic in this area, we have some advice for the care provider. In ensuring these steps are taken now, you will be best placed to respond to the challenges associated with any changes to the law in this area: 

• Review contracts of employment, especially around second jobs and working hours.  
• Review policies and procedures around working hours to ensure full compliance with the relevant regulations.  
• Disseminate the working hours policy and procedure to all staff, making sure that staff at all levels understand their roles and responsibilities. 
• Be vigilant around the work which your staff perform not just for you but other employers. Ask them whether they work for anyone else and the hours they work and make it a condition of their employment that they give honest information and update you as to any changes.  
• Do all that you can to get to know your staff, understanding as best you can the financial and time pressures upon them. This will not only enable you to speak openly with them about their requirements but will help you realise their ambitions. This will both support them and provide an environment where they will be motivated and stay, rather than moving on. 
• Keep scrupulous records of the hours your staff are doing. Not only is this a legal requirement but enables you to better understand the commitment they are making to your business. 
• Review hours of work during supervisions and explore their motivation for working as they do. Look at ways in which their working requirements can be best tailored to the needs of the business. 
• Consider an approach to the rostering of staff which does not afford additional hours just to those who shout loudest. 
• Pay proper attention to flexible working requests. Many employers play lip-service to these requests, particularly when a refusal is seen as the simplest response. In our experience a genuine discussion about flexible working can open up other opportunities. Developing a reputation for flexibility will be an attractive selling point to candidates. 

Whilst it is accepted that many of you will already be doing these things, there is always room for improvement. Ironically, the secret is for managers to make the time to do these things so to free up time elsewhere. We started this article by saying that time is a curious thing, and we guess that the notion of taking time to save time really does prove it. Just don’t leave it too late. 

Adrian Poole  

Adrian Poole has worked with the social care and healthcare sectors for the last 20 years. He was until recently a partner and head of a specialist team at a regional law firm. He is now a consultant at Apers Ltd (www.apers.co.uk) specialising in the regulated sectors. Here he provides expert HR and regulatory advice, combining this with leadership, management and compliance training. He is a regular speaker at local and national conferences. He also works as a consultant solicitor in Dorset.