BECTU's response to UK Department of Trade and Industry consultation on Working Time Guidance
13 January 2000
1. While welcoming many aspects of the Working Time Regulations, BECTU retains strong criticisms on some points - notably the qualifying period for annual leave and the recent amendments. We recognise that the current consultation concerns the Guidance and not the (amended) Regulations as such. However, since the Government has changed very little in response to the criticisms of the amendments, we regard this exercise as a poor substitute for a more meaningful discussion on the Regulations themselves.
2. We remain totally unconvinced that the Regulations have been placing an undue administrative burden on business and would repeat our challenge to Government to produce objective verifiable evidence (as opposed to self-serving claims by employers) that there is any such burden.
3. Our specific comments on the Guidance are as follows:
Unmeasured Working Time (UWT)
4. Our initial criticism of the amendment introduction partial UWT (set out in our response attached) was that it 'will cause wholly unnecessary uncertainty for many of our members and could lead to unscrupulous employers to expect and demand increasing amounts of extra, unpaid work'. In our view, the Guidance does nothing to remove this uncertainty. If anything, the examples given reinforce it.
5. Our initial submission quoted realistic examples from among both our freelance and staff members. Specifically, we referred to freelances working on film and television productions with responsibilities stretching beyond the normal 'shooting day'; and to staff producers in broadcasting working to tight production schedules. The common theme was that while such workers might have some discretion over working hours at the micro level, they have no meaningful control whatsoever at the macro level since they are typically subject to tight budgeting and scheduling constraints. In project-based film and television production, 'whether or not some of [these workers] have a degree of control over their working hours at the margins, they are still subject to the demands of the project's schedule. Their discretion at this level is zero'. The choice, for such workers, is between long hours and even longer hours.
6. We are clear that these situations should not count as partial UWT. The Guidance contains no such clarity. Example D implies that any discretion could lead to a designation of partial UWT. Unscrupulous employers could seek to make use of this, while ignoring the larger reality of regular long hours, large volumes of work and tight deadlines.
7. The Guidance fails to rectify the potential damage of what, in or view is a bad amendment in the first place. We urge the Government to reassert the need to limit excessive working time rather than providing channels which may merely encourage it.
Who is a 'Worker'?
8. Regulation 2 defines workers to include those who work under contracts "whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any business or undertaking carried on by the individual".
9. In our view this would clearly include individual Schedule D freelances - who are not small businesses, who often have no choice but to work in this way in casualised industries, and who often work side by side with staff and PAYE freelances.
10. The inclusion of individual freelances within the definition of 'workers' is clearly in line with Government's stated aim of a more inclusive approach to rights at work generally and with the EU's initiatives on extending rights to 'atypical workers'.
11. It therefore concerns us that the Guidance contains no such contextual argument. The existing DTI Guide to the Regulations is unhelpful in referring to a dubious category of 'the genuinely self-employed' as being excluded from the Regulations but at least goes on to make clear that 'someone is self-employed if they pursue a business activity on their own account' (thereby leaving individual Schedule D freelances outside their definition of genuinely self-employed and within the scope of the Regulations).
12. The draft 'Short Guide' and 'Your Guide' omit even this amount of qualification. We are left with sweeping statements such as 'If you are self-employed .... these Regulations do not apply to you'. This completely fails to reflect the meaning of Regulation 2 and gives a positively misleading impression which could lead to the exclusion of freelance workers from their entitlements under the Regulations. This has a particular resonance for us since we are facing just such a crass and inaccurate interpretation from the Inland Revenue - which we will be pursuing separately with Government and possibly in the Courts.
13. The use of the term 'worker' rather than 'employee' is meant to reflect a new and inclusive approach on rights at work for atypical workers. The Guidance simply does not reflect this. It should be amended accordingly.
The 48 Hour Limit: Record Keeping
14. Like many organisations we were and remain totally opposed to the removal of the requirement for record keeping in respect of hours worked and the terms of any opt-outs. The Guidance - unfortunately - goes out of its way to note that "no further record keeping is required" (other than a list of workers opting-out).
15. In our view, this is a dangerous and irresponsible approach to workers' health and safety. It is clearly good practice for employers to keep records of the long hours worked by opted-out workers. Regardless of the minimalist approach in the Regulations, they should surely be encouraged to do so and certainly not encouraged in the opposite direction.
16. We believe Government itself recognises this, since the section on 'More about Keeping Records' states that 'you should monitor the hours of workers who appear to be close to the working time limit'. If this is desirable (and we certainly believe it is), then we can see no justification for the statements elsewhere in the Guidance that 'no further record keeping is required.' They should be removed.
Annual Leave
17. For the record, we restate our strong objection to the imposition of a 13 week qualifying period for paid annual leave. This, in our view, contradicts the Directive and simply leaves large numbers of freelances and short term contract workers with no holiday entitlement whatsoever under the Regulations. We await the view of the European Court of Justice on this issue.