Working time

A ‘refusal’ or ‘proposed refusal’ by an employee to accept a contravention (or proposed contravention) of the Working Time Regulations 1998 (WTR) by his employer must be communicated explicitly and in advance to his employer.

An employer’s refusal to allow an employee, who would not opt out of a 48-hour week, to work overtime was not unreasonable. Its actions were necessary to comply with its duties under the Working Time Regulations (WTR). The employee had not been penalised nor had he suffered a detriment by refusing to sign the opt out.

In a decision relevant to employers whose staff don’t follow a standard working pattern, the Supreme Court has held that workers can be required to take their annual leave during what may be seen as ‘rest periods’.

The Court of Appeal has provided guidance on what amounts to ‘compensatory rest’ (under the Working Time Regulations 1998) which has to be given when it’s not possible for a worker to be given the rest breaks prescribed by the WTR. Security guards whose rest breaks were not guaranteed to be uninterrupted, but who could choose when they took the break and whose break began again if it was interrupted were still receiving ‘equivalent periods of compensatory rest’ akin to the standard 20-minute rest break (required by WTR, reg. 12 after every 6 hours of work).

P went on sick leave just before his annual leave was about to start. When he returned from sick leave he asked his employer to allocate him a new period of paid leave because he had been on sick leave during the period of holidays originally allocated to him. The employer refused.

The House of Lords, following a decision of the ECJ, held that the right to paid statutory holiday does accrue during periods of sickness absence and an allowance in lieu of such holiday is payable on termination.