It has been officially confirmed that Liz Truss has won the Conservative party leadership contest over Rishi Sunak. It has been reported that changes to employment law legislation are being proposed as part of a strategy to improve the competitiveness of the UK in a post Brexit landscape.
One of the potential changes relates to the Working Time Regulations 1998. This piece of legislation sets limits on employees’ working hours. This is currently set at an average of 48 hours per week. Currently, employers can request that employees sign an opt out form which means that they can lawfully work above that limit. Agreement to this must be genuinely voluntary, employees can change their mind at any time, and employees cannot be subjected to any detriment for not signing an opt out form. It has been suggested that this detriment aspect may be removed.
With the rules as they are it is advisable that employers who request employees to sign an opt out do not include this as part of the employee’s contract. Given that employee consent to an opt out must be freely given, it weakens the employer’s argument, if this issue was to come up at tribunal, if the opt out is contained within the employment contract which the employee will be required to sign. It can be done as part of the onboarding process, but it should be a separate document.
This does not mean that employers cannot require employees to sign opt out forms in some circumstances. The case of Arriva London South Ltd v Nicolau concerned a bus driver who alleged he had suffered a detriment for refusing to sign an opt out form. The company had a policy that prevented drivers from working on their rest days, and therefore earning overtime, if they had not signed an opt out. However, the Employment Appeal Tribunal explained that employers are required to keep records of what hours people are working and the onus is on them to make sure their employees are not going over the legal limit. Therefore, the policy was not retribution but simply making sure that employees who choose not to work 48 hours a week had their wishes respected.
It has not been made clear if the removal of the obligation on the employer to not subject employees to a detriment for refusing to sign an opt out is definitely going to be removed. If this protection is removed it is unlikely to make much practical difference as employers will still be required to monitor the hours employees work and the rules surrounding unfair and constructive unfair dismissal will still be in place.
For employers, it is important to be aware of the rules and any potential changes. Navigator is available for help and advice on all matters concerning the Working Time Regulations.