One of the disadvantages of working in the independent sector is the long working day. In most jobs or occupations, the number of hours that the employee is expected to work is defined in the contract of employment. This is true of the state maintained sector.
Unfortunately, for those working in the independent sector, hours of work are often unspecified, vague, or there is a clause in the contract containing the catch-all phrase “whatever hours the head considers reasonable for carrying out your duties”.
To compound matters is the unwritten expectation that teaching staff in independent schools will undertake numerous extra-curricular activities and lunchtime duties. And, of course, then there are boarding schools!
So, if your contract of employment is silent on working hours, your rights and responsibilities may have been set by custom and practice and this may enable you to challenge the introduction of new duties. If your contract of employment cannot help you and custom and practice does not apply, you are reliant on the legal limits to the number of hours that can be reasonably worked and specified rest breaks.
The 1998 Working Time Regulations
The primary purpose of the Working Time Regulations is to safeguard the health and safety of employees. There are some national differences in the legislation, for instance, in Northern Ireland the relevant law is contained in the Working Time Regulations (NI) Statutory Rule 386. The regulations can make a significant positive contribution to reducing working hours and providing adequate rest breaks. The key features of the Regulations are as follows.
The working week is limited to a maximum of 48 hours, averaged over 17 weeks. In residential institutions, the averaging period is 26 weeks. The averaging period disregards periods away from work for sickness, maternity, paternity, adoption or parental leave or the minimum statutory leave, but includes other periods of holiday, which tends to lower the average of hours worked.
The controversial element is whether time ‘on call’ or time spent working at home counts as ‘working time’. This has major significance for NEU members who, for instance, may be working as housemasters/housemistresses or house-parents, and are expected to respond to calls or emergencies at any time of day or night.
In the leading case of Focus Care Agency Ltd v. Roberts, the Employment Appeal Tribunals considered whether sleep-in time counted as time worked for the purposes of national minimum wage. This case involved a carer whose sleep in shift was timed to last for 9 hours. The carer was not allocated any specific tasks and could sleep. However, throughout the night she had sole responsibility for keeping a listening ear and to use her professional judgement and detailed knowledge to decide when she should intervene. The EAT concluded that the carer was performing time work during her sleep-in shift, whether asleep or not.
The EAT also laid down four factors to be considered when deciding whether someone is entitled to the national minimum wage: These are:
- The employer’s particular purpose in employing the worker.
- The extent to which the worker’s activities are restricted by the requirement to be present and at the employer’s disposal.
- The extent of the worker’s responsibilities.
- The immediacy of the requirement to provide services in emergency situations or when something untoward occurs.
NEU’s position is clear: if your time is not your own, to do as you please, and your employer can call upon you to carry out work on their behalf in emergencies or when something untoward occurs, then you are working and the time should be counted under the Working Time Regulations.
In the case of the weekly working hours’ limits, individual agreements are possible between worker and employer, excluding the standard 48-hour limit. These agreements have to be in writing, signed and contain a notice clause. The employer in these cases is not obliged to keep records of hours actually worked by the individuals concerned. Further, no detriment can be imposed on workers who refuse to sign a working hours’ agreement.
Most workers are entitled to an uninterrupted rest break of at least 20 minutes away from the workstation if their working day exceeds six hours. The break should be given roughly halfway through the period, not at the beginning or end. NEU recommends a minimum break of 40 minutes.
Daily rest period
Most workers have a right to a daily rest period of at least 11 consecutive hours in each 24.
Weekly rest period
Employers must provide a minimum weekly rest period of at least 24 hours in each seven-day period for most workers, although employers can opt for 14-day averaging. The rest period is not required to include Sunday.
Full-time employees are entitled to a minimum of 28 days’ paid annual leave (bank and public holidays can be included in this). Part-time staff enjoy a pro rata entitlement.
Night workers’ hours are limited to eight hours in each 24-hour period, averaged over 17 weeks. The employment contract can define ‘night time’ hours. If not, the Regulations define a night worker is one who, as a normal course, works at least three hours of daily working time between 11pm and 6am.
Employers must keep ‘adequate’ records to show that the average weekly working time limits are being observed. Records must be kept for two years. Employers should also make occasional checks of workers who do standard hours and who are unlikely to reach the average 48-hour limit. In addition, it is good practice to monitor the hours of workers who appear to be close to the working time limit, and make sure they do not work too many hours.
The legislation provides for some flexibility from the full rigour of the regulations, firstly to accommodate various sectors of employment and also to cover certain exceptional circumstances at work. The key ones are:
- residential institutions (such as boarding schools)
- foreseeable surges of activity
- 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 or to the daily rest break. However, s/he is ‘wherever possible’ to be allowed to take an ‘equivalent period of compensatory rest’. Significantly, in these cases the limits on working time (see below) will still apply.
As the regulations are essentially a health and safety measure, the working time (and night work) limits are enforced by the Health and Safety Executive. Employers who fail to comply could be prosecuted for committing a criminal offence.
So, what does it mean for employees working in educational institutions?
The restrictive definition of ‘working time’ and its averaging over 17 or 26 weeks (which will inevitably include some school or college holiday within the calculation) prevents most teachers and lecturers from benefiting. Indeed, the fact that the 48-hour limit is averaged in this way will mean that during term time, teachers may work considerably longer than 48 hours per week, without this contravening the regulations. Nonetheless, some boarding schools where ‘on duty’ periods are especially onerous may be affected. Note that boarding schools are not exempted from the normal 48-hours averaged limit.
Rest and breaks
Residential institutions, such as boarding schools, are excluded from the normal requirements on rest and breaks, but staff are ‘wherever possible’ entitled to claim ‘an equivalent period of compensatory rest’. NEU members in some boarding schools have successfully negotiated compensatory rest to be taken in blocks of time.
Similarly, the flexibilities (see above) for ‘surges of activity’ and ‘unforeseeable circumstances’ are likely to apply to events such as school trips, where short periods of unusually long working hours are required. Again, in these cases, compensatory rest should be given.
Long hours and low pay
There is a culture of working excessively long hours in the independent sector. Much emphasis is placed on extracurricular activities, with an expectation that staff will give up evenings and even weekends.
For some support staff, the combination of long hours and low pay can be particularly toxic.
In most instances, support staff work defined hours. There should be provision for overtime or time off in lieu for any additional hours worked. Though, NEU members have on occasion had to exert this basic right.
Trouble lies for support staff with residential or boarding duties, when the employer does not recognize on-call hours as working hours.
NEU has taken a number of successful legal cases against boarding schools for breach of the National Minimum Wage, as well as failing to provide reasonable time off. If you are concerned that you are working excessive hours or have insufficient breaks, please contact NEU and we can advise you on whether your employer is in breach of the law, and what options are available to you. In many instances, with the assistance of NEU, members have been able to negotiate more time off and, in some cases, financial recompense.