26. Working hours
Updated 11 January 2023
Introduction
26.1 It will be necessary for any practice to take into account the operation of the Working Time Regulations 1998 (WTR) and to operate the practice in a manner that does not breach these provisions. This is of particular relevance to the question of 24-hour emergency cover.
26.2 It should be borne in mind that there are provisions relating to weekly rest breaks, daily rest and rest breaks, as well as consideration of the 48-hour working week.
26.3 The RCVS recognises the burden placed on practices with regard to 24-hour emergency cover and entirely supports the main purpose of the WTR which is to safeguard the health and safety of workers. The purpose of this supporting guidance is to assist with understanding the provisions of the Regulations in the context of veterinary practice.
26.4 This supporting guidance is intended to provide advice on the effect of the WTR. It does not amount to legal advice, which should be independently sought, if necessary. The WTR are complex and need to be carefully considered within the context of the individual practice.
26.5 For further advice on the WTR, including advice on modifying contracts or aspects of the Regulations that remain unclear, you are advised to seek legal advice about what you need to do.
24-hour emergency cover and the Working Time Regulations 1998
26.6 The main provisions of the WTR contain the following obligations (note that the position is different with young workers, who are defined as those over compulsory school age but under 18 years old (Regulation 4)):
- The maximum working time is limited to 48 hours a week unless the worker has stated, in writing, that the 48-hour week is excluded. It will be necessary for workers to sign an individual opt-out of the 48-hour week.
- Daily rest of 11 consecutive hours in each 24-hour period (Regulation 10). It is important to consider the impact of this statutory provision when considering the requirement that the practice takes steps to provide 24-hour cover.
- Weekly rest of no fewer than 24 consecutive hours in each seven-day period. This can be provided for over a two-week period, provided the worker gets two rest periods of 24 consecutive hours each, or one rest period of 48 consecutive hours (Regulation 11).
- Rest breaks of no fewer than 20 minutes must be given to workers working more than six hours (Regulation 12).
- Young workers may not work more than eight hours in any one day and 40 hours in any one week. They are also entitled to a daily rest of 12 hours, a weekly rest of 48 hours, and shift breaks of 30 minutes in a shift of over four-and- a-half hours (Regulation 5A).
- In addition, provision needs to be made for holiday that is a statutory requirement under the WTR, health assessments etc. Advice should be taken on this.
26.7 Where the practice is a partnership, it should be noted that the WTR apply to workers rather than partners, so that it may be possible to arrange cover without the Regulations being applicable.
Exceptions
26.8 The WTR provide for exceptions and amendments to the above requirements in the case of certain industries and activities, and these provisions need to be considered in deciding how the practice can operate. It is of note that the WTR used to contain a provision that the above provisions were not to apply where, on account of the specific characteristics of the activity, the duration of the working time was not measured or predetermined, or was determined by the worker themselves. However, this provision has been removed.
26.9 Where the nature of the veterinary services provided relate to agriculture, and the activities involve the need for continuity of service or production, then the above provisions as to rest breaks may be excluded.
26.10 Where the veterinary practice relates to agriculture, it may be possible to treat the WTR as being excluded. It is essential that specific advice is taken on this, especially if the practice is a mixed one.
26.11 The other way in which the rest break provisions may be excluded or modified are where a Workforce Agreement (WA) has been entered into. This is set out in more detail below.
26.12 It is possible for you to contractually agree with your employees that they will provide cover and that this will not be a breach of the rest provisions of the WTR (see paragraph 26.18 below for reference to a sample WA). Remuneration is a separate issue and the relevant provisions as to minimum wages would have to be considered. This supporting guidance sets out how a WA may assist in ensuring appropriate cover is provided.
Compensatory rest
26.13 It is important to note that where the rest provisions have been excluded by means of a WA, the worker is entitled to claim what is called a compensatory rest break, which is an equivalent period of compensatory rest or, in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, it is necessary to provide appropriate protection to safeguard the worker’s health and safety.
26.14 The WTR do not state that the compensatory rest must follow on as soon as it may be physically possible. For example, if a worker is called out during the night, it does not follow that the worker may come into work later the next day where the needs of the business require cover. The compensatory rest may be given at a time to suit the employer’s needs, but consideration must be given to providing such compensatory rest and, if it is not provided, there is likely to be a breach of the WTR. The sooner the compensatory rest can be provided after the work has been carried out, the better, as this will meet any arguments as to whether the WTR have been complied with.
On-call as working time
26.15 One of the major problems that practices may envisage is that ‘on-call’ time can be categorised as working time even though the worker is not actually carrying out any work. There have been cases involving, for example, doctors or nurses on call, who are regarded as working throughout that time even though they do not actually perform work for all, or even most, of the time on call. Similarly, a worker who was required to sleep in a hotel overnight, to answer emergencies, was working for the whole of that period even though he was sleeping.
26.16 This means that where a practice requires its veterinary staff to be ‘on call’ overnight to answer emergencies, this may be deemed to be working time even where there are few call outs. This may bite into the required 11-hour rest break where the worker is on call during that time. The work will be regarded as working time if the worker is at their employer’s disposal.
26.17 It should be borne in mind that where the veterinary surgeon is on call from home, then this may mean that the worker is not working unless they are actually called out on an emergency. This may very much turn on the terms of the contract, so that advice should be taken if it is intended to ensure that such a worker is only to be regarded as working when actually called out on an emergency.
26.18 Thus, there is a real risk that, unless a WA has been entered into which excludes the rest periods and provides for alternative compensatory rest, if the practice is proposing to comply with its 24-hour emergency cover obligations by using its own staff, there could be a breach of the WTR unless the working time is allocated between the staff so as to comply with those requirements of rest periods set out above. For more information on Workforce Agreements, specific legal advice should be sought. The British Veterinary Association, through its Members’ Services Group, provides a sample Workforce Agreement template and guidance notes for employers and employees. Useful general employment information can also be found on the GOV.UK website.
26.19 This guidance highlights the importance of ensuring that the practice’s own workers are brought within the permissions contained in the WTR, or the practice uses alternative sources to comply with its 24-hour emergency cover obligations. Unless the activities relate to agriculture, there will be no automatic exclusions.