With the clocks going back could it mean employees work an extra hour?

Working Time: What you need to know when the clocks change

The clocks are due to go back an hour on Sunday October 27^th, meaning an extra hour in bed for lots of us.

But what does this mean for staff working a night shift? Could this mean an extra hour of work, sometimes without even getting any extra pay? Must they be paid for working an extra hour? Or can they go home when they have worked their usual number of hours, even when the clock says they have an hour to go?

The change can also have unintentional consequences for you as an employer if you deal with it incorrectly.

More than 3 million people work night shifts in the UK, meaning one in nine workers could be affected by changes to daylight hours.

Limits on working time

Employers should be careful that the extra hour does not lead to a breach of the rules on maximum night-time working hours and minimum rest breaks for in particular, night workers, as set out by the Working Time Regulations 1998 (WTR).

The WTR have special provisions for night workers, which limit their shifts in addition to the 48-hour limit on average weekly working time.

Who is a night worker?

A night worker is any person who works for at least three hours during “night time” on the majority of their shifts or does so “as a normal course”.

The worker does not have to be exclusively or even predominantly engaged in night work. However, someone who works nights only occasionally, or only on an ad hoc basis, will not normally be a night worker for the purposes of the WTR.

Collective or workforce agreements may be used to specify the proportion of annual working time that must be worked during night time in order for a worker to qualify as a night worker. However, this cannot be used to exclude workers who would otherwise count under the “normal course” test.

What is night time?

Night time is defined, in the absence of contrary agreement, as the period between 11.00 pm and 6.00 am.

Employers can agree in a relevant agreement (that is, a collective, workforce or individual written agreement) another definition of night time hour provided it lasts at least seven hours and includes the hours between 12.00 midnight and 5.00 am.

Consequently, it could cover from 10.00 pm to 5.00 am, or from 12.00 midnight to 7.00 am.

In theory, each worker could have a different night time although this would not make it easy for employers to manage and is unlikely to be fair on the workers.

Average hours

The following night work limits must be complied with:

•  An eight-hour average limit on a night worker’s normal hours of work per day, whether done in the day or night;
• An eight-hour actual limit for each day in the case of work undertaken by a night worker (not necessarily during night time) involving special hazards or heavy physical or mental strain.

For the purposes of calculating the average, the WTR provides for a rolling 17-week reference period.

The WTR applies to a worker’s “normal hours of work”, and not to the hours actually worked. “Normal hours” takes account of contractual hours plus any compulsory or regular overtime, but not changes due to ad hoc overtime or a reduction in hours due to holidays, sickness, maternity or other reasons. Employers should therefore ignore any of these fluctuations in actual working hours if they do not affect “normal hours”.

If an employer requires a worker to work the extra hour after the clocks change, then this could affect the average calculation.

Helpfully, the WTR provides a formula to calculate hours worked. An important point for employers and employees to note is that this calculation assumes that a worker’s normal working hours are performed over six days in each week, regardless of what the worker’s actual working pattern is.

Examples

A night worker does four 12-hour shifts per week. In reality, the average length of each shift is 12 hours. However, as the WTR assumes that the total hours worked (48) were performed over six days rather than four, giving an average of eight hours per day. Accordingly, this arrangement does not fall foul of the average eight-hour limit.

A night worker does four 11-hour shifts and two hours’ regular overtime each week. He therefore works 46 normal hours per week, which will amount to 782 during the 17-week reference period. His average daily normal working hours will be an allowable 7.67 (782/102), even though his actual shift hours are 11 or more. Any ad hoc overtime he works is disregarded.

How should employers deal with employees who are working when the clocks change?

The clocks changing from British Summer Time to Greenwich Mean Time can cause confusion among employees and employers if staff are working overnight.

Generally, it is for employers to decide how they handle the situation, but this is subject to the statutory rules on the national minimum wage and working time, and anything contained in the employees’ contracts of employment.

Will staff have to work an extra hour?

Whether or not an employee will need to work an extra hour will depend on how the employment contract is worded.

Employers and employees should check the wording of the contracts.

If it says that an employee has to work specific times, for example from 12am to 8am, that employee is more likely to have to work the extra hour.

But if it states the minimum number of hours that an employee should work, for example an eight-hour shift, then an employee can establish that they should be allowed to finish an hour earlier.

Will staff get paid for working an extra hour?

If an employee has to work the extra hour, whether they will get some extra cash depends on how they are usually paid.

Employers don’t necessarily have to pay employees for working an hour longer on a particular shift, but the situation will differ for hourly paid and salaried employees.

If an employee is paid by the hour, they should get some extra money for working longer but if they are salaried or paid a day rate, the employer doesn’t have to pay any more than usual. A salaried employee is more likely than an hourly paid employee to be required to work extra hours without additional pay.

Of course, employers can always choose to pay their employees for the extra hour, or to allow them to go home once they’ve worked the normal number of hours, regardless of their contractual obligations.

Ultimately, as long as the employer is paying at least the national minimum wage, entitlement to payment will depend on the employer’s rules on overtime.

Even if an employee is not entitled to extra pay, for instance because they are on a salary and earning more than minimum wage, it’s worth flagging the issue to the employer.

Be consistent and fair

For most workers, the position will even out when they gain an hour when the clocks go forward again.

But this won’t always be the case – a worker who works an extra hour in October might not be working the night shift when the clocks go forward again in March.

Further, the change can have an immediate impact on their pay, working conditions and their personal home life and so should not have to wait to be compensated.

What if you are working more than this?

Employers are obliged to take all reasonable steps to ensure that the eight-hour average limit on night work is complied with.

A worker can make a complaint to the Health & Safety Executive regarding a breach of night-time working protection. An employee can also make a complaint regarding failure to pay the minimum wage, to HMRC.

This obligation is enforced by means of criminal sanctions supported either by the HSE or the local authority, depending on the nature of the business being carried out.

On an individual level, if an employee is concerned their working conditions are in breach of the WTR, then they should follow the employer’s policies and procedures in respect of raising a complaint informally or through their formal grievance procedure. Employment Tribunals have jurisdiction to hear complaints and claims of this nature.

What about when clocks go forward?

For most of us, Sunday morning, 29^th March 2020, will mean one less hour in bed as the clocks go forward one hour.

In the interests of fairness, employers that require employees to work by the clock in October should do the same in March, when they will be able to go home after working an hour less. However, those unlucky few that have to work a night shift on that Sunday could be set to lose out.

Unfortunately, there isn’t a definitive law that governs workers’ rights if they are working when the clocks go forward – it’s really up to the employer.

Unlike when the clocks go back in October, employers do not need to be concerned about the risk of paying under the national minimum wage or breaking working time rules.

However, they should bear in mind that employees will technically be working an hour less in their shift as a result of a clock change. For example, an employee working an eight-hour shift will actually only work for seven hours.

Whether the employer will need to pay their employees for a full, eight-hour shift in this situation will depend on upon the contract of employment.

Generally, a contract will outline that a worker is entitled to hourly pay for every hour that they work. That being said, salaried workers are more likely than hourly paid staff to receive the normal amount regardless of whether they work one hour less.

Employers can choose how they treat this hour lost, subject to any contractual entitlements, but should act consistently and fairly. For example, they may decide that all employees must work an extra hour to make up the hour ‘lost’ but shouldn’t pick and choose who needs to and who doesn’t; one rule should apply to everyone.

What should you do?

If an employee is scheduled to work on the day before or after the clocks change, they should be reminded that the clocks are changing and encouraged to prepare for this. Employee lateness for example can be costly for a company and employers can consider disciplining any late worker if they believe it is necessary. Employers should have a clear policy on how they work around the clock changes, and ensure their contracts and practices are clear.

Employees should check the wording and make sue they understand how the clock changes will affect their take home pay and working day.

Links

Working Time Regulations:

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!

Photo by Kelly Sikkema on Unsplash

---