Intended to safeguard the health and safety of employees, the 1998 Working Time Regulations include a number of provisions to protect almost all workers from excessive working hours.
This includes not only employees but also others (such as agency staff) who work personally, provided they are not engaged in carrying on a business on their own account, and applies equally across all sectors and areas of the UK.
Rights under the regulations
The main rights protected by the regulations are:
a limit of 48 working hours per week (averaged over 17 weeks or 26 weeks in residential institutions)
an uninterrupted rest break of 20 minutes in a working day of six hours or more
a daily rest of at least 11 consecutive hours in each 24 hours
a minimum weekly rest period of at least 24 hours in each seven-day period
24 days annual leave (inclusive of bank holidays) - this will increase to 28 days from 1 April 2009.
In the case of the weekly working hours limits only, individual agreements are possible between worker and employer to opt out of the standard 48-hour limit. These agreements have to be in writing and contain a notice clause of no more than three months, and the employer in these cases must keep records of hours actually worked by the individuals concerned.
No detriment can be imposed on employees who refuse to sign such an agreement.
The legislation provides for some flexibilities to cover certain exceptional circumstances at work. The key ones are:
where the worker's activities involve the need for continuity of service - for example in boarding schools
surges of activity, such as an Ofsted inspection or school trip
unusual and unforeseeable circumstances beyond the control of the employer (including accidents).
In each of these cases, the worker is not entitled to the standard daily and weekly rest periods nor to the daily rest break. However, he or she is 'wherever possible' to be allowed to take 'an equivalent period of compensatory rest'.
Implications for schools
Because working time is averaged over 17 or 26 weeks (which will inevitably include some school or college holiday within the calculation), most teachers and lecturers will find it hard to claim that their working hours exceed the statutory limit - even if they work considerably more than 48 hours a week during term time.
'Non pre-determined' work that is not specifically required by the employer - such as the out-of-hours preparation many teachers and lecturers feel obliged to carry out - does not count towards the statutory working time limit.
The right to a minimum daily rest period of at least 20 minutes away from the work station is unlikely to be helpful to many teachers. Those working under the national School Teachers Pay and Conditions Document are already entitled to a 'break of reasonable length'.
ATL advises members against agreeing to any individual waivers of the working time limit. Such exclusions may perhaps be appropriate in some exceptional cases, but the Association would expect careful consideration of individual circumstances before approving any such agreements.
Boarding schools are not exempted from the normal 48-hour (averaged) weekly working time limit discussed above. The partial exclusion for residential institutions from statutory rest periods and rest breaks applies only to those workers whose activities directly involve the need for 'continuity of service'.
This exclusion may include some boarding staff, but is unlikely to apply to all employees in a boarding school. Despite the difficulties in challenging heavy workloads discussed above, some boarding schools where 'on duty' periods are especially lengthy may be in breach of the Working Time Regulations.
The Regulations give a right to 24 days paid leave per year. For part-time staff, this should be calculated 'pro rata' (for example, a part-timer working 2.5 days per week should receive 12 days paid leave).
However, the right is unlikely to benefit part-time staff on 'year-round' contracts (i.e. those who receive a percentage of the full-time salary in twelve monthly instalments), since they already receive 'paid leave' in their monthly salaries.
For those on daily or hourly paid contracts (who are paid only when they work), the position is more complicated. If they are paid a rate which is clearly calculated as a proportion of the full-time annual salary which includes paid holidays, then no right to further paid holiday arises. This is the case for supply staff employed by maintained schools, academies and colleges.
However, if the flat daily or hourly rate cannot be shown to include an element of holiday pay, then there may be an entitlement to claim an appropriate proportion of paid holiday.
While individual contracts of employment stipulate working hours, members are covered by the regulations, unless they have agreed to waive certain rights.
If you have signed a waiver, you may restore your rights on giving up to three months' notice, and your school must keep records of your working time. If you are asked to waive your working time rights, contact ATL.
One way working hours at private schools can multiply is through the wording of contracts, which state that extra hours may be required when "reasonably requested by the headmaster". Some employers use this wording as carte blanche to request excessive hours.
ATL has successfully taken legal action against independent schools that attempted to get round working time rules in this fashion - and will continue to pursue cases.
Working hours and other conditions of employment are set out in the National Joint Council Pay and Conditions of Service Handbook (sometimes known as the Red Book - this has been updated in May 2011). They closely parallel those for teachers.
Joint guidance on working time was added to Appendix 9 of the Red Book in May 2011 (this is an extract from the updated Red Book linked to above).
Most colleges follow a traditional 'school' day with morning and afternoon sessions (usually arranged somewhere between 9am and 4pm). However, in order to cater for all subjects, combinations and ages, there may be a third/'twilight' session.
If so, staff should check whether they are required to teach in it and how this fits in with their overall teaching and other commitments. FE colleges usually have a third or fourth session, working up till 9pm.
Where colleges have evening sessions, up to six hours of directed time per week may be used. Beyond this, such work would be voluntary. This includes any teaching after the end of the college's normal teaching day. Reasonable time breaks should be allowed between college sessions both for day and evening.
Support staff generally display an enormous amount of goodwill by putting in extra hours unrewarded. If working longer hours becomes a regular thing, then schools and colleges should pay staff for those hours or offer the equivalent time off at a later date.
Goodwill works both ways: schools and colleges with a flexible workforce should be equally flexible in granting things such as special leave and time off for doctors' and dental appointments.
The national job profiles (Local Government Employers website) contain a reference to the requirement for support staff to take part in out of hours activities, eg:
"Assist with the supervision of pupils out of lesson times, including before and after school and at lunchtimes." (Teaching Assistants General - Levels 1 and 2)
"Implement planned supervision of pupils out of school hours." (Behaviour/Guidance/Support - Level 3)
"Be responsible for the provision of out of school learning activities e.g. clubs, extra-curricular activities within guidelines established by the school." (Curriculum/Resource Support - Level 4)
On the question of out of school trips, level 2 teaching assistants are expected to "accompany teaching staff and pupils on visits, trips and out of school activities as required and take responsibility for a group under the supervision of the teacher". Level 3s can be required to "supervise pupils on visits, trips and out of school activities."
Interestingly, there is no requirement for level 4s (HLTAs, in the main) to accompany or supervise school trips.
So when could a teaching assistant decline to participate in an out of hours activity?
When the member in question is being asked to do something that is not within their job description eg if a level 2 teaching assistant is expected to supervise, as opposed to accompany or assist with, a school trip or out of hours activity.
Where unreasonable notice is given e.g. on the day of the trip/activity itself, or in any other circumstance where caring responsibilities cannot be rearranged to allow the member to take part.
Where the TA has not received the necessary training or protective equipment/clothing.
If the member has a physical limitation or disability which precludes her/him from taking part.
If the member won't be paid for it - there may be a requirement to work after school hours, but not for free!
The working time (and night work) limits are enforced by the Health and Safety Executive. Accordingly, employers who fail to comply with these limits could be prosecuted for committing a criminal offence.
However, individual workers who are aggrieved at their employer's disregarding of the working time limits or the entitlements to daily rest breaks, daily and weekly rest periods or paid annual leave are also entitled to pursue a claim in the employment tribunal within three months of the incident.
The tribunal can make a declaration as to the worker's rights and can award compensation in appropriate cases (regulation 30).
Need further advice?
Your first point of contact is your ATL rep in your school or college. Your local ATL branch is also available to help with queries, or you can contact ATL's member advisors on tel: 020 7930 6441 or email us. Please have your membership number to hand when telephoning and include it with any correspondence - this will help us to answer your query more quickly.