On 7 July, the Government published proposals to amend regulations 4 (48 hour week), 5 (opt-out agreements) and 20 (record-keeping) of the Working Time Regulations 1998.

The Government carried out only very limited consultation, with a deadline for response of 21 July.

The regulations have now been laid before Parliment. The amendments seriously undermine the protection given to workers. Their effect is even more damaging than the description given in Stephen Byers' accompanying memorandum to the proposals.

48 Hour Limit: Opting-Out

Working time must not exceed an average of 48 hours per week, except for workers who have opted out. Currently, the "opt-out" is subject to a number of requirements, including that it must be in writing and that the employer must keep records of the hours worked and of the terms of the "opt-out" agreement.

The Government says that the proposed amendment is to remove a perceived burden on businesses to keep records of hours worked for opted-out workers. On its own, this is serious in that there is likely to be more dispute as the hours actually worked.

The Government has withdrawn its proposal that the opt-out need not be in writing. However, there would only have to be an agreement that the worker shall "perform such work".

It seems that the 48 hour maximum would not apply to a worker who had agreed to perform particular work, even though the worker had not specifically agreed to opt-out, or even have known about the 48 hour limit.

48 Hour Limit: Records

Under the amendments, employers will only have to keep records of who had signed an opt-out. The current requirements to keep records of hours actually worked and of the terms of any opt-out agreement would be removed.

This weakens the effective enforcement of the 48 hour maximum. It is difficult to see how the Government will be able to comply with its own obligations to respect the general principles of the protection of health and safety of workers when employers' record keeping duties are only partial.

Unmeasured Working Time

The proposed amendment to regulation 20 (the "unmeasured working time" derogation) will exclude from the limits on weekly working time and night workers that part of working time which the worker carries out "without being required to do so by the employer". The Government explains that the derogation is to be extended so as to apply to workers who "choose to work longer because of their own volition".

Once again, there will be considerable scope for confusion and uncertainty. If an employer requires a worker to carry out a particular task, at what point can it be said that the worker is working of "[her] own volition"? The imbalance of power between worker and employer is ignored.

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