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Fighting fatigue: the Working Time Directive and Re-flow

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Keeping track of regulations like the Working Time Directive (WTD) is time consuming but necessary when it comes to staying compliant. Re-flow improves this process further.

Small changes can make a significant impact – especially in regards to employee wellbeing. Keeping your teams happy builds loyalty, encourages them to work harder, and boosts operations. Re-flow's fatigue tracking feature is an additional boost to a suite of tools that put compliance and safety first. 

An overview of the Working Time Directive (also known as Working Time Regulations) 

Overview

  • Employees across UK infrastructure are limited to no more than 48 hours a week taken as an average over 17 weeks. (Other industries – trainee doctors, and workers in the offshore oil and gas sector have different reference periods).
  • Employees under 18 are limited to working 8 hours a day or 40 hours a week.
  • Employees can opt out of these limits, but they can’t be sacked or treated unfairly for refusing to do so. They can opt out for a certain period or indefinitely. It must be voluntary and in writing1.
  • To opt back into WTD regulations, workers need to give 7 days’ notice. They may have to give more notice (up to 3 months, dependent on the conditions of the employer and if they are forced to make adjustments*) if they have a written opt-out agreement.

Pay when workers go over the weekly limit

When employees work over the weekly limit, and the employee has opted out of the WTD, employers have no requirement to offer a higher overtime rate.

  • Higher overtime pay is it the discretion of the employer, and it must be written in an agreement or otherwise in the employment contract.
  • In the case that the employee has not opted out of the WTD, they can work more than 48 hours in a week, but as a consequence they need to work fewer hours across the calculation reference period to balance their average weekly hours.
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Guidance for companies providing variable, or out-of-hours services

The guidance states that:

  • Employees may have to work more than 48 hours a week on average if they work in a job where 24-hour staffing is required.

Normally ‘on call’ conditions2 would be included in the terms of the contract.

In these cases, the advice of Acas (Advisory, Conciliation and Arbitration Service – an independent public body that provides ‘free, impartial advice on employment rights and workplace disputes’ with funding from the government) is to be open.

Give the prospective employee information about the Working Time Directive, so the employee is clear about what they’re expected to do.

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Important notes on potential conflicts and grey areas:

  • If an employee does the same tasks over and over then the specifics (time, activity, etc.) of the task can be taken as new terms of the contract: depending on the context, these implied terms can go in favour of the employee or the employer.
  • On call note 1: if a worker has to sit at home and they have limited ability to do their own activities, then this would be classified as working time, not as being on call.
  • On call note 2: alternatively, if the employee is only required to be in mobile phone contact, and they’re free to go to events or take part in activities like going to the cinema, they can be considered on call.
  • On call note 3: the moment the employee has to do something for work, their working time begins and they should be paid accordingly.

Guidance on workers opting in and out of the WTD

A complicated situation can arise if the following happens:

  • During recruitment, the employer has been up front about the need for out-of-hours working and the requirement is written in the contract
  • Yet after being employed, the employee goes against the agreement and opts back into the Working Time Directive
  • The clash – between a likely unenforceable policy of the company and the worker’s rights under the Working Time Directive

In this situation, if the employer thinks the employee doesn’t have the capability to do the role it can lead to a conflict.

The recommendation is to investigate the situation, analyse options, and then try to find a way forward. Flexible working might be an option, but the employer also has the right to refuse it. If the worker is no longer capable of carrying out their contracted work then this can lead to a dismissal. 

It’s important to note that in a worst-case scenario, an employment tribunal and a judge would decide. 

As with most situations with complicated grey areas, it’s best to speak to Acas with the aim of making an informed decision.

Mastering the working time directive in infrastructure

Getting on top of the working time directive for businesses operating across multiple sites and multiple jobs, often with hundreds or thousands of employees, is a significant task with multiple opportunities for compliance-breaking errors.

The flexible nature of work – at the mercy of the weather, the whims of clients, and so on – merits special attention on the topic of the WTD.

This becomes more critical when health and safety risks and regulations are considered.

Understanding issues around fatigue

Employers have a legal duty to manage the risks of fatigued workers.

  • Poorly-designed shift arrangements and extended working hours without balanced rest periods can result in fatigue, accidents, injuries, and ill health.
  • Fatigue causes a decline in a variety of mental or physical performance issues. Fatigue specifically refers to3 ‘the issues that arise from excessive working time or poorly designed shift patterns.
  • It’s considered ‘a decline in mental and/or physical performance that results from prolonged exertion, sleep loss, and/or disruption of the internal clock.’
  • ‘It is also related to workload, in that workers are more easily fatigued if their work is machine-paced, complex, or monotonous.’

Fatigue has also been implicated in 20% of accidents on major roads and is said to cost the UK £115 - £240 million per year in terms of work accidents alone4.

Toppesfield Worker with Tablet

Approaches to managing and tracking fatigue in line with the WTD

Having peace of mind that workers are being scheduled correctly can be difficult, especially for larger companies.

For those managing companies in dangerous industries across UK infrastructure – from construction to highways, landscaping to utilities – compliance with the WTD has very dramatic and immediate importance due to the risks listed in the previous section – that fatigue causes accidents.

Keeping compliant is always important, but when the risks are (1) serious injury to operatives or the public, (2) death, (3) career ending incidents, or (4) huge fines, then the consequences are impossible to ignore.

Road Worker with Tablet

Advice from the HSE website suggests treating fatigue like any other hazard (see the full list on managing risks here5):

  • It is the employer’s legal duty to manage the risks from fatigue, not the employee’s.
  • Employees should be consulted on working hours and shift patterns, with the caveat that employees can act against their own interests and that they may prefer shift patterns that are unhealthy and likely to cause fatigue.
  • On that note, poor decision-making by the employee will not excuse the employer from repercussions for compliance failures.
  • Companies should implement a policy and make arrangements to monitor and enforce it. This may include developing a robust system of recording working hours, overtime, shift-swapping, and on-call working.

Easily track work hours and automate compliance with Re-flow

Field management software truly capable of meeting your needs will come with fatigue tracking features.

Options like Re-flow Field Management7 automate time-wasting and resource-heavy scheduling tasks.

  • This ensures that company fatigue-related management policy is automated into scheduling. As operatives are assigned to jobs, the software checks against pre-established criteria, and stops the operative being put on a job if there is a clash.
  • The database of working hours is built automatically from operatives submitting digital timesheets, also a part of the app.
  • Timesheets are uploaded and processed by the software the moment they are submitted, ensuring complete visibility while providing a single source of truth.
  • This process eliminates non-compliance risks that might lead to serious incidents and fines.

By taking responsibility for cross referencing and monitoring operatives’ working hours, the software frees up time in the business and ensures compliance via:

  • An intuitive interface, easily configured by admin staff to specific requirements
  • A flexible system with three broad, configurable sets of criteria for fatigue tracking. For example:
  1. Workers can work no longer than x number of hours in x number of days.
  2. Workers can work no more than x number of consecutive days in an x -number of days period.
  3. Workers must have x number of hours between shifts.

These conditions can be set up to trigger notifications to relevant managers, or (as mentioned above) restrict the scheduling of non-compliant workers to jobs.

With the power of management software, a complicated process that leaves companies vulnerable to serious repercussions from human error is completely automated.

Sources 

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Advisory, Conciliation and Arbitration Service (Acas) is an independent public body that provides free, impartial advice on employment rights and workplace disputes. Acas's goal is to improve working conditions by helping employers and employees resolve conflicts and create better employment relations.