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Thursday 04 February 2021

Open all hours? Your working time rights during the pandemic

By Richard Arthur

With many NHS managers are working longer hours with fewer breaks than ever before, here's our quick summary of your working time rights during the pandemic (and after).

Umbrellas

While some workers have been furloughed in the pandemic – something which has brought its own unique pressures – others who have worked throughout the crisis have had to deal with demanding and erratic hours, in many cases filling in for absent colleagues. So, what is the law around working time and how does it apply in a pandemic?  

Check your contract 

The bottom line is that the pandemic has not suspended or changed any of the laws around contracts of employment. Pandemic or not, your first port of call is to check your contract of employment to understand what should be happening. In addition to this, you can refer to the Working Time Regulations (WTR), which continue to apply throughout the pandemic, and did not automatically change after the end of the Brexit transition period on 31 December 2020. 

Your contract should specify what your normal working hours are either, in terms of total time in a week or hours in a day. If the contract is very specific about your hours, then—in the absence of any valid variation to those terms—your contractual hours continue as before. 

If your contract only sets out minimum or maximum hours, but not when they are to be worked over a week, then the option to alter shift patterns is always open to an employer regardless of COVID-19. Given most employment contracts have a clause within them that states that the employees’ working hours are subject to the needs of the business, so long as an employer keeps its demands within the hours specified for a week, they can make changes. If shift patterns are fixed by the contract, then they can only be changed by agreement (or by termination and re-engagement). 

Working Time Regulations 

The WTR applies to all workers and specifies an entitlement to an uninterrupted rest break of 11 hours in every 24-hour period, and an uninterrupted 24 hours in each seven-day period. This can also be taken as two uninterrupted rest breaks of 24 hours, or one 48-hour uninterrupted rest break in a 14-day period. In addition to this, for every six hours worked, an employee must receive a rest break.

The WTR also limits the hours in an average working week to 48, and provides clarification for other rights, including the provision of 28 days paid annual leave a year and free health assessments for night workers. 

What if your employer ignores your contract or the WTR? 

Firstly, you need to understand whether shift patterns are a term of your contract. If so, any change should be subject to consultation and agreed by the parties. The discussion should focus on what the likely impact of the change will be and what the alternatives are. The employer could suggest seeking volunteers first and they should suggest a time limit. 

Any change which is agreed or permitted by the contract—even if it is temporary—should be recorded in writing (preferably as part of a collective agreement) and have a start and end date. Agreements ‘subject to review’ should be avoided as reviews have a funny habit of never taking place and temporary changes that are treated as permanent may be harder to challenge later. 

A change to start and finish times could be discriminatory if, for example, it puts women with caring responsibilities or disabled workers at a particular disadvantage. To mitigate this, the employer must consider reasonable adjustments. 

Seeking legal support 

For more information on Working Time Regulations, download the legal guide produced by  MiP's legal advisers, Thompsons Solicitors. If you have need legal advice on a working time issue, speak to your MiP national officer

  • Richard Arthur is head of trade union law at Thompsons Solicitors. Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP rep or national officer.

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