Working Time Regulations

Policy Type HR Policy

Policy Category To Be Categorised

Policy Number HR44

Author HR Directorate

Reviewer HR Policy Group

Signatory Director of Workforce, Employee Director

Implementation Date 01 October 2014

Last Review Date 01 March 2021

Next Review Date 01 March 2024

Version Number 5

General Note

NHS Fife acknowledges and agrees with the importance of regular and timely review of policy/procedure statements and aims to review policies within the timescales set out.

New policies/procedures will be subject to a review date of no more than 1 year from the date of first issue.

Reviewed policies/procedures will have a review date set that is relevant to the content (advised by the author) but will be no longer than 3 years.

If a policy/procedure is past its review date then the content will remain extant until such time as the policy/procedure review is complete and the new version published, or there are national policy or legislative changes.

Standard review undertaken - no changes made.

1. FUNCTION

This policy details NHS Fife’s commitment to the Working Time Regulations 1998 (as amended) and sets out the obligations of managers, staff and staff side representatives.

2. LOCATION

This policy applies to all managers and staff within NHS Fife, excluding Doctors and Dentists in Training.

3. RESPONSIBILITY

The responsibility for the application of the policy rests with Line Managers, Staff and HR staff within NHS Fife.

4. OPERATIONAL SYSTEM

The purpose of this policy is to set out the arrangements and processes for ensuring NHS Fife's compliance with the Working Time Directive and Regulations.

5. RISK MANAGEMENT

This policy and associated appendices will be reviewed annually to ensure compliance with relevant and appropriate employment legislation.

6. RELATED DOCUMENTS

Appendix 1 – Collective Agreement

Appendix 2 – Guidance for Managers and Staff Side Representatives

Appendix 3 – NHS Fife 48 hour Working Time Limit Waiver

AFC Terms and Conditions of Service

Medical & Dental Staff Terms & Conditions of Service

Working Time Regulations, as amended

EQIA

APPENDIX 1

COLLECTIVE AGREEMENT

THE WORKING TIME REGULATIONS 1998

[AS AMENDED]

APPENDIX 1

CONTENTS

Page(s)

1. Introduction 1

2. Who Is Covered By The Agreement? 1

3. Record Keeping 2

4. Maximum Weekly Working Time 2

5. On-call 3

6. Stand-by 3

7. Employees Opting to Work More Than 48 Hours per Week 4

8. Employees with more than one Employer/Multiple Employments with

NHS Fife 4

9. Rest Breaks 5

10. Minimum Daily Rest Periods 6

11. Weekly Rest Periods 6

12. Shift Workers 6

13. Night Workers 6

· Special Hazards and Heavy Physical or Mental Strain 7

· Health Assessments 7

14. Annual Leave 8

15. Compensatory Rest 8

16. Review 9

1. INTRODUCTION

APPENDIX 1

The NHS Scotland Staff Councils agreement reached in accordance with Regulation 23 of the Working Time Regulations 1998 (as amended) is contained within the Agenda for Change Terms and Conditions handbook. This agreement gives flexibility for a number of the Working Time Regulations to be discussed at local level.

This Collective Agreement is NHS Fife’s plan to ensure compliance with the Working Time Directive. Management guidance notes produced to support and clarify the national and local agreements are also available

There is a general responsibility for employers and employees under health and safety law to protect, as far as is reasonably practicable, the health and safety at work of all employees. Control on working hours should be regarded as an integral element of managing health and safety and promoting health at work. It is therefore appropriate that NHS Fife, whenorganisingwork, should take account of the general principle of adapting work to the worker.

In determining local arrangements to implement this agreement, employers and employees are expected to ensure that no action is taken which discriminates against any members of staff with family or carer responsibilities.

Doctors and Dentists, including Doctors and Dentists in training have been covered by the provisions of this agreement since 2009 (see CEL 14 (2009) However, it is still possible for Doctors to work longer hours by signing an opt-out clause. Working patterns for junior Doctors, Dentists and GP Trainees must also comply with the New Deal for Doctors in Training which was introduced in 1991 to look at reducing the number of hours worked or on duty by junior Doctors, Dentists and GP trainees in hospitals.

It is also important that employees suffer no detriment as a result of exercising their entitlements under the Working Time Regulations. The Working Time Regulations indicate minimum requirements and it is recognised that more favourable conditions are currently in place within areas of NHS Fife.

2. WHO IS COVERED BY THE AGREEMENT?

For the purposes of this agreement a worker (referred to as an employee within this agreement), means an individual who has entered into or works under (or, where the employment has ceased, worked under):

A contract of employment; or

Any other contract, whether expressed or implied and (if it is expressed) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract, whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

Agency Employees

Agency employees working within NHS Fife are covered under the scope of the Working Time Regulations and have a right to all the health and safety entitlements provided. However, the responsibility for ensuring compliance with the Working Time Regulations lies with the Agency and not NHS Fife. Although the Agency will be recognised as the employer in terms of the Working Time, NHS Fife must comply with the requirement for in-work rest breaks.

APPENDIX 1

Non-Employed Trainees ()

For the purposes of the Working Time Regulations, a person receiving training, other than under a contract of employment, shall be regarded as an employee, and the person who is providing the training shall be regarded as the employer. For example nursing/AHP students on university placements would fall under this category.

3. RECORD KEEPING

Managers must keep records, which are adequate to ensure compliance with the various time limits specified in the agreement. Line Managers may find a number of ways in which to meet this duty, for example:

For employees who work shifts, the use of timesheets that already are currently being used to record hours worked is appropriate.

· For employees who keep regular hours (e.g. 9.00 am to 5.00 pm), it is seen as appropriate for the employee to notify their Manager when they are working in excess of the standard working hours. Then the Manager could monitor the hours worked by the employee more closely, or adjust the work of that the employee is being asked to do, to ensure compliance

Where an employee works less than an average of 48 hours per week (over a 17 week reference period), a copy of the contract of employment and any relevant duty and overtime sheets would be sufficient evidence that the 48 hour week is not being exceeded.

These records must be kept for a period of 2 years from the date on which they were made. Although records, in accordance with the Working Time Regulations, do not require to be kept for those staff who opt out of a 48 hour week, NHS Fife does considers that it is good practice to keep records for all staff regardless of whether or not they may have signed an opt out agreement.

Records kept in accordance with the Working Time Regulations must be made available to the appropriate enforcing authorities on request and also in the interests of good employee relations, to staff side representatives.

Although there is no requirement under the Working Time Regulations to keep records regarding annual leave or rest periods, including where compensatory rest is required, within NHS Fife such records must be kept in order that compliance with the Working Time Regulations can be demonstrated.

4. MAXIMUM WEEKLY WORKING TIME

According to the Working Time Regulations 1998 (amended), the definition of “working time” is;

(a) any period during which the employee is working, at their employer’s disposal and carrying out their activity or duties,

(b) any period during which the employee is receiving relevant training, and

(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement;

Such time may or may not, happen to coincide with the time for which an employee receives pay or with the time during which the employee may be required to work under their contract of employment.

Working time will also include civic and public duties; health and safety; and trade union duties plus any additional time, which may be covered by this collective agreement.
Where an employee takes work home, time worked will only count as working time if the work undertaken was previously agreed with their manager.
Time spent travelling to and from a place of work is not working time, unless the employee is engaged in travel during the course of their duties.

Working time is calculated exclusive of meal breaks, except when, with the prior agreement of their manager, an employee is required to work during meal times. An example of this would be where an employee is obliged to participate in a working lunch.

Employees will not normally be expected to work more than 48 hours in any seven-day period calculated over an averaging period of 17 weeks (unless extended in exceptional circumstances by agreement in partnership)

5. ON-CALL

Employees who are required to be “on-call”, i.e. participating in an on call rota and available to work if called upon, will be regarded as working from the point at which they are required to undertake any work related activity. Where employees are on-call, but otherwise free to pursue their own interests this will not count towards working time. This method of calculating working time does not affect on-call payments.

In some areas of NHS Fife, employees can be called out for long periods of time, at night. In such cases managers must consider implementing local agreements, which take account of the intensity of work an employee is required to do whilst ‘on-call’ in order to ensure that compensatory rest is taken. It is recommended that where an employee who is on call and is called out to their place of work after midnight, should not return to work, until 11 hours after the end of their last call-out.

b. STAND-BY

Where employees are required, as part of their contract to “stand-by” on NHS premises for the duration of a specified period, and are not free to pursue their own interests, they are regarded as working for the purposes of this agreement. In some cases employees will work more than the average maximum number of hours stated within the Working Time Regulations. In such cases, managers must consider implementing local agreements, which take account of the intensity of work an employee is required to do whilst sleeping in, in order to ensure that compensatory rest is taken. It is recommended that where an employee who is standing-by is called on to work after midnight, they should not return to work until 11 hours after the end of their last callout.

APPENDIX 1

c. EMPLOYEES OPTING TO WORK MORE THAN 48 HOURS PER WEEK

Employees may choose to agree to work more than the 48-hour average weekly limit. However, this must be in agreement with their line manager and the relevant Head of Service, Health & Social Care Partnership (H&SCP); Director of Acute Services, Acute Services Division or Executive Director. Exercising this option is an individual, voluntary choice and no pressure should be placed on an employee to take such a decision. However, if an employee chooses to work more than 48 hours per week, a written agreement will be required.

Such an agreement must:

(a) identify the employee by name and job title and show their normal contracted working hours;

(b) if it is to be for a specific period, clearly state the relevant dates and give the reason for the increased hours, e.g. the absence of a colleague or an increase in workload;

(d) state if it is for the purpose of allowing an employee to maintain more than one job;

(e) state the notice period under which the agreement may be terminated.

If an employee is also working for another employer, a record of the additional hours must be kept. The agreement, must therefore, state the regularity and basis upon which the employee will inform the employer of the hours they are working within another job.

To allow for individual flexibility, notice periods to amend the agreement should be negotiated between the employee and their manager at the time the agreement is made. Notice must be given in writing. In accordance with the Working Time Regulations the notice period to terminate an agreement should not be less than 7 days but no more than 3 months.

8. EMPLOYEES WITH MORE THAN ONE EMPLOYER

The Working Time Regulations require employers to take all reasonable steps to ensure that employees do not exceed an average of 48 hours of weekly working time. Such steps include enquiring whether an employee is working elsewhere or requesting that they be informed of an employee getting other work.

Employees are, therefore, now required as part of their contract of employment to inform their manager of any other employment they may have when they commence employment with NHS Fife or during their employment with NHS Fife. However, it is not necessary for the employee to give their manager details of their other employment including the type of work, which they are performing, unless there is potential conflict of interests. If this is the case the onus is on the employee to discuss this with their manager.

APPENDIX 1

Employees must agree with their manager the basis upon which they will provide the details of their hours of work with another employer on an ongoing basis. These hours should then be included in the calculation of the average hours worked by the employee over the 17-week reference period.

However, if the employee is identified as working an average of more than 48 hours per week and they have not agreed to opt out of the 48 hour weekly working time limit, then the manager must discuss this with the employee and decide the best way forward to ensure a reduction in hours.

However, if the employee is self-employed outside their employment, there is no requirement for them to give their manager details of the hours that they working. It should be noted, however, that there might still be a potential conflict of interest. In such cases, an employee must advise their manager of the type of work, which they are performing, and any contracts, which they may hold.

It has been agreed that full-time employees can only work one additional NURSE bank shift / over-time shift per week / agency shift per week. For part-time staff they can work up to the same hours as full-time staff plus one additional bank shift / over-time shift / agency shift per week. This is to ensure that all staff have an adequate weekly rest period. Only in exceptional circumstances such as severe shortage of staff or implementation of major incident plan can this limit be exceeded. _{Any staff member on a bank contract must make their Manager aware of all bank shifts carried out over and above substantive shifts.}

9. REST BREAKS

Where the working day is longer than six hours, all staff are entitled to take a break of at least 20 minutes. Rest breaks must be taken during the period of work and should not be taken either at the start or the end of a period of working time. Employees should also be able to take this rest break away from their workstation. In exceptional circumstances, if it is agreed by the employee and their line manager that an employee is unable to take a rest break, the unused entitlement should be claimed as a period of equivalent compensatory rest. However, the Working Time Regulations do not include provision for rest breaks to be paid.

Arrangements for employees to take their breaks will be agreed at local level. Existing local arrangements, which already provide for breaks of more than 20 minutes will meet the requirements of this provision and no further action is necessary.

In circumstances where work is repetitive, continuous or requiring exceptional concentration managers must ensure the provision of adequate rest breaks as an integral part of their duty to protect the health and safety of employees. In such circumstances the advice of the Occupational Health and Safety Advisory Service should be sought.

Although within NHS Fife most staff currently have an entitlement to an adequate rest break, line managers need to monitor this to ensure rest breaks are taken at appropriate times. Where changes require to be made, these should be discussed and agreed with employees affected and in partnership.

APPENDIX 1

10. MINIMUM DAILY REST PERIODS

Employees should normally have a rest period of not less than 11 hours in each 24 hour period. In exceptional circumstances, due to the needs of the service, the daily rest given is less than 11 hours, compensatory rest (see section 15) must be provided.

Any proposed regular amendment to the minimum daily rest period must be agreed locally in advance with staff side representatives.

It is recognised that in some emergency situations compensatory rest may not always be possible.

11. WEEKLY REST PERIODS

Employees are entitled to receive an uninterrupted weekly rest period of not less than 24 hours. Including the minimum daily rest period indicated above this amounts to one period of 35 hours consecutive rest per seven-day period.

Where it is not possible to provide this rest, employees should receive equivalent rest over a 14 day period, either as one 70 hour period, or two 35 hour periods. This is in accordance with the Agenda for Change Terms and Conditions of Service and the Medical & Dental Staff Conditions of Service. Line Managers need to ensure that all entitlements to rest are provided.

12. SHIFT WORKERS

Where an employee changes shift, it may not be possible for them to take their full rest entitlement prior to starting their new pattern of work. Similarly, employees who work split shifts, for example, staff on morning and evening shifts, may not be able to take their full rest entitlement between shifts. The Working Time Regulations indicate that in these circumstances, daily and weekly rest entitlements do not apply. However within NHS Fife where the full daily and weekly rest periods cannot be taken, arrangements should be made to allow equivalent compensatory rest as soon as possible.

13. NIGHT WORKERS

For the purposes of the NHS Staff Councils agreement, night-time is a period of at least seven hours which includes the period from midnight to 5.00 am. A night worker is someone who is classed as working for at least three hours daily during night-time hours as a “normal course”. Employers should ensure that the “normal hours” of their night workers do not exceed an average of eight hours per 24 hour period over a 17 week period.

“Normal hours” are those which are regularly worked and / or fixed by a contract of employment. The calculation is not affected by absence from work, as a worker’s normal hours of work would remain the same, regardless of the “actual” hours worked.

Managers must ensure that the normal hours of night workers do not exceed an average of 8 hours per night over a 17 week period. Calculations are not affected by absence from work, as a worker’s normal hours of work would remain the same, regardless of the actual hours worked. Time worked as overtime is not classed as normal hours unless this is regular overtime where an employee’s contract of employment should specify a minimum number of hours.

APPENDIX 1

13.1 Special Hazards and Heavy Physical or Mental Strain

In accordance with the NHS Staff Councils agreement, employers must identify, using risk assessment tools, any special hazards faced by night workers which pose a significant risk to health and safety in accordance with the Management of Health and Safety at Work Regulations 1992. Employers must ensure that night workers, whose work does involve special hazards or heavy physical or mental strain, do not actually work for more than 8 hours at night in any 24-hour period.

For the purposes of this agreement, within NHS Fife the responsibility for identifying any special hazards faced by night workers rests with the Line Manager.

13.2 Health Assessments for Night Workers / transfer to day work

All night workers are entitled to a regular, free and confidential health assessment. When a work related problem is identified as a result of the health assessment or otherwise, managers must determine whether the worker is fit to undertake the night work to which they have been assigned. Paid time off will be given to employees to attend for a health assessment.

Within NHS Fife, the Occupational Health and Wellbeing Service will undertake assessments. The system used in pre-employment screening meets the requirements of this Regulation. Assessments will involve paper-based screening in the first instance. Periodic reassessments, which are required by the Working Time Regulations, will be agreed on an individual basis between the employee and the Occupational Health and Wellbeing Service. This does not remove the responsibility of the employee or their manager to contact the Occupational Health and Wellbeing Service for advice and guidance if problems occur outside the assessment date.

Employees identified by the Occupational Health and Wellbeing Service as having health problems related to night work should be offered wherever possible the option of transfer to suitable day work with the appropriate pay and conditions of service. Protection of earnings will not apply in these circumstances.

APPENDIX 1

14. ANNUAL LEAVE

The statutory entitlement to paid Annual Leave for a full-time employee is 28 days This is calculated on a pro-rata basis for those who do not work full-time. Employees with substantive full time contracts, who work additionally for the bank, will be entitled to further allocation of leave for any bank hours worked. There is no statutory entitlement to bank or public holidays for bank staff.

An employee who commences employment part way through a leave year is entitled to leave proportionate to that period of the leave year remaining. If the period of leave includes a proportion of a week, this shall be calculated in days with any part days being treated as whole days. Under the Working Time Regulations an employee must have worked for the employer for 13 consecutive calendar weeks before entitlement to leave arises. However, during this time annual leave is still accrued. Employers are not required to adhere to this restriction, thus allowing employees within NHS Fife to be able to take up their entitlement to annual leave from the first day of their employment, as is currently the practice. Approval of leave requests are at manager’s discretion in accordance with the needs of the service but should not be unreasonably refused.

For the purposes of this agreement the leave year runs from 1 April until 31 March in each year, unless otherwise agreed within an employee’s contract of employment or in the case of bank employments. The entitlement to Working Time Regulation annual leave is described in more detail within NHS Circulars PCS(AfC)2008/12, PCS(AfC)2009/1, PCS(AfC)2009/4 and the associated questions and answers, CEL(2011)15, DL(2017) 4, PCS(AfC) 2019/6, DL (2020)9 and DL(2021)03

Absence from work during what would otherwise be time when the employee would be engaged on normal work tasks does not necessarily constitute leave. For example, an employee might be carrying out representative duties for which the employer allowed time off work, or the workplace might be closed due to an emergency so that there was no option for the employee. The Working Time Regulations sets out conditions in respect of notice of intent to take annual leave and notice of the requirement to take or not to take the leave at certain dates or times. Local arrangements should be made for this.

15. COMPENSATORY REST

In circumstances where an employee’s entitlement to a specific aspect of the Working Time Regulations either does not apply or is modified, the employee must be permitted to take an equivalent period of compensatory rest or in exceptional cases, where providing equivalent compensatory rest is not possible, be given other appropriate protection. Managers are responsible for ensuring that compensatory rest is provided, within a reasonable time, usually within two weeks of the excess period. It would not be acceptable for staff to accumulate compensatory rest over an extended period and then take a number of days off

APPENDIX 1

However, compensatory rest does not necessarily mean providing an employee with time off in lieu. NHS Fife has agreed that employees can currently be afforded opportunities for compensatory rest throughout the course of their working week. An employee cannot, unless by individual agreement, work more than an average of 48 hours per week. They are entitled under the Working Time Regulations to 90 hours rest per week (6 x 11 hours of daily rest plus 1-x 24 hours of weekly rest). There are 168 hours available per week, so therefore:

168 (hours available per week) - 90 (daily and weekly break hours) = 78 hours less 48 hours (working time) = 30 hours available for compensatory rest.

Therefore, there is adequate opportunity for compensatory rest to be given within the working week. However, there will be exceptional circumstances where time off in lieu must be given. In these circumstances local arrangements must be made. The provision of compensatory rest does not negate a manager’s responsibility for ensuring that staff who are entitled to receive an in-work rest break, receive such a break. In addition, staff who work extra hours e.g. over-time or additional hours are still entitled to receive payment for these hours or appropriate time back in lieu.

16. REVIEW

Any dispute as to the interpretation or application of this agreement shall be resolved via the NHS Scotland Workforce Grievance Policy.

If difficulties arise in the implementation of any section of this agreement, a review earlier will be considered.

Appendix 2

THE WORKING TIME REGULATIONS (1998)

[AS AMENDED]

GUIDANCE NOTES FOR MANAGERS AND STAFF SIDE REPRESENTATIVES

Appendix 2

LIST OF CONTENTS

Page(s)

Introduction 1

Line Managers Responsibilities 1

Maximum Weekly Working Time 2

Calculating Weekly Working Time 2

Reference Periods 4

On-call & Stand-by 4

Opting Out 5

Employment with more than one Employer / Multiple

Employments with the same Employer 6

Rest Breaks 7

Night Workers 8

Annual Leave 10

Compensatory Rest 12

Record Keeping 12

Waiver Form ` 14

Appendix 2

INTRODUCTION

On 1 October 1998, measures were introduced called “The Working Time Regulations”. The Regulations implement the EC Directive on the Organisation of Working Time (the Working Time Directive) [as amended].

The Working Time Regulations provide rights for employees ensuring that they do not have to work excessive hours.

In broad terms, implementing the Regulations means:

Establishing minimum daily and weekly rest periods;

Granting 28 days (pro rata for part time staff) paid annual leave (known as WTR Leave);

Ensuring that the average working week is limited to no more than 48 hours (although special arrangements can be made to allow individuals to voluntarily opt out of this limit);

Limiting the hours of night workers;

Ensuring regular health assessments for night workers and if necessary transfer to day work.

LINE MANAGERS RESPONSIBILITIES

Line Managers are responsible for ensuring that the Working Time Regulations are implemented appropriately within their area of responsibility and that local arrangements / procedures are amended / developed, as required.

Listed below is a summary of action points that Line Managers are required to make local arrangements on, in order to comply with the Working Time Regulations:

On-call & Stand-by – local compensatory arrangements;
Opt out arrangements;
Employees with more than one employer;
Employees with multiple jobs with the same employer
In Work Rest Breaks;
Compensatory Rest;
Notice requirements for an employee to take annual leave;
Annual Leave and Sickness at the end of the leave year;
Allocation of paid annual leave to bank staff

Line Managers should ensure that they also have arrangements in place in order to calculate Weekly Working Hours and Night Workers hours over the 17 week reference period, as well as ensuring that all records are kept for a minimum of two years.

This document provides guidance on the Working Time Regulations and makes suggestions to assist Line Managers to ensure compliance with the Regulations locally.

Appendix 2

This document is based on a question and answer format and provides responses to some commonly raised questions regarding compliance with the Working Time Regulations.

WHAT IS THE MAXIMUM WEEKLY WORKING TIME?

Employees are not expected to work an average of more than 48 hours per seven-day period. This is calculated over an averaging period of 17 weeks.

WHAT IS CONSIDERED WORKING TIME

Working Time is defined as any time when an employee is:

(a) any period during which the employee is working, at their employer’s disposal and carrying out their activity or duties,

(b) any period during which the employee is receiving relevant training, and

(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement.

Such time may or may not happen to coincide with the time for which an employee receives pay or with the time during which the employee may be required to work under their contract of employment.

Working time excludes meal breaks.

Line Managers must keep adequate records, which will be available to locally recognised unions, in order to demonstrate that the limits on maximum working weekly time have been complied with.

DOES WORKING TIME INCLUDE ANY OTHER TIME?

Working time will also include any time during which an employee is undertaking civic and public duties; carrying out health and safety and / or trade union duties; plus any additional time which is covered by this collective agreement.

HAS NHS FIFE MADE ANY AGREEMENTS TO ADD TO THE DEFINITION OF WEEKLY WORKING TIME?

Yes. The following has been agreed:

A. Where individuals are required to work during meals, this will be classed as working time. An example of this is an employee obliged to participate in a working lunch.

B. Where an employee takes work home, time worked would only count as working time where work at home was performed on a basis previously agreed with the Line Manager.

C. Time spent travelling to and from a place of work is not working time, unless the employee is engaged in travel that is required by their job.

HOW IS AVERAGE WEEKLY WORKING TIME CALCULATED?

Average weekly working time is calculated by adding the total number of hours worked by the worker each week within the reference period and then dividing this total by the number of weeks in the reference period.

DO I NEED TO CONSIDER ANYTHING ELSE WHEN CALCULATING AVERAGE WEEKLY WORKING TIME?

If the worker was absent during the reference period for any of the reasons below, the equivalent time will need to be added to the reference period and hours worked in that time immediately after will be included in the calculation:

paid annual leave
maternity leave
paternity leave
adoption leave
parental leave
time off sick

Example 1

A worker has a standard working week of 37.5 hours and does overtime of 20 hours a week for the first 10 weeks of the 17 week reference period. No leave is taken during the reference period.

The total hours worked is:

(17 x 37.5) + (10 x 20) = 837.50

Therefore, the average is: 837.50

17 = 49.26 hours per week

Therefore, the average limit of 48 hours has not been complied with.

Example 2

A worker has a standard working week of 37.5 hours and does overtime of 5 hours a week for the first 6 weeks of the 17 week reference period. 4 days annual leave entitlement are also taken in the reference period.

The total hours worked in the reference period is:

16 weeks and 1 day (37.5 hours a week and 7.5 hours a day) and 6 weeks of 5 hours of overtime.

(16 x 37.5) + (1 x 7.5) + (6 x 5) = 637.50

Appendix 2

The time worked for the 4 days of annual leave entitlement must also be added. In the first 4 working days after the reference period the worker does no overtime, so 4 days of 7.5 hours work should be added to the total:

4 x 7.5 = 30

Therefore, the average is (total hours divided by number of weeks):

637.50 + 30

17 = 39.26 hours per week

and so the average limit of 48 hours has been complied with.

WHAT DOES THIS MEAN FOR STAFF WHO WORK ON-CALL?

The Working Time Regulations specify that time when an employee is “on-call”, but otherwise free to pursue their own activities, that is not counted as working time.

As described previously “Working Time” is defined as any time when an employee is “working, at their employer’s disposal and carrying out activities or duties”. For time to be classed as working time all three of these elements must be satisfied.

This means that although an employee who is “on-call” can be contractually paid for being “on-call” for the purposes of the Working Time Regulations, actual “working time” does not start until they have been asked to work.

A distinction should be made between those employees who need to respond immediately and those who are warned in advance (e.g. theatre nurses who may be advised that they will be needed in a couple of hours). In the latter case, working time should not start until the employee has left his / her residence.

ARE TELEPHONE CALLS WHILE ON-CALL CONSIDERED WORKING TIME?

Time spent in telephone calls, may be considered working time also. For example, Directorate Nurse Managers who may be called to give advice over the telephone. The period they are on the telephone giving such advice can be counted as “working time”.

In some areas of NHS Fife, employees can be called out for long periods of time, at night. In these cases, Line Managers will be required to consider implementing local agreements, in order to take into account the intensity of work, which an employee may be required to do whilst “on-call” and ensure that compensatory rest is taken. It is recommended that where an employee who is on-call and is called out to their place of work after midnight should not return to work until 11 hours after the end of their last call-out, so that the minimum daily rest requirements are met.

Line Managers require to keep records of the hours actually worked by employees on-call. These records may be shared with staff side colleagues, upon request.

WHAT IS CONSIDERED WORKING TIME WHEN STAFF ARE ON STAND-BY?

Where employees are required as part of their contract to Stand-by within NHS Fife premises for the duration of a specified period, they are not free to pursue their time as their own, and so are regarded as working for the purposes of this agreement.

In these cases, Line Managers will be required to consider implementing local agreements, in order to ensure that hours worked are recorded and that compensatory rest is taken when necessary.

It is recommended that where an employee who is on stand-by is called on to work after midnight, they should not return to work until 11 hours after the end of their last call-out.

INDIVIDUALS OPTING TO WORK MORE THAN 48 HOURS PER WEEK

Employees may choose to work more than the 48 hour average weekly limit provided that they agree this with their Line Manager, in writing, using the standard NHS Fife Waiver. This requires to be signed off by the relevant Director of Acute Services / Head of Service, Health & Social Care Partnership/ Executive Director and will be for an agreed period, e.g. six months at a time, subject to review.

Exercising this option is an individual, voluntary choice, and no pressure should be placed on an employee to take such a decision.

To allow for individual flexibility, notice periods to amend any agreement should be negotiated between the employee and their Line Manager at the time the agreement is made. Notice must be given in writing. In accordance with the Working Time Regulations, the notice period to terminate an agreement should not be less than 7 days, but no more than 3 months.

The NHS Fife Opt Out form is provided as appendix 3 to the NHS Fife Compliance with Working Time Regulations Policy.

WHAT IF AN EMPLOYEE HAS MORE THAN ONE JOB WITHIN FIFE OR ALSO WORKS FOR ANOTHER EMPLOYER?

The Working Time Regulations require employers to take all reasonable steps to ensure that employees do not exceed an average of 48 hours of weekly working time. Such steps would include enquiring whether an employee was working elsewhere or requesting that you be notified of an employee getting other work.

Employees are, therefore, now required as part of their contract of employment to inform their Line Manager of any other employment they may have when they commence employment with NHS Fife or if they commence secondary employment during their employment with NHS Fife. However, it is not necessary for the employee to give their Line Manager details of their other employment, including the type of work which they are performing, unless there is potential conflict of interests. If this is the case, the onus is on the employee to discuss this with their Line Manager.

This can be easily done by, including a special box in a time sheet asking whether or not the person has another employer or another post/s with NHS Fife. Provided this question has been asked, the requirement has been carried out, irrespective of whether or not the employee is willing to answer the question.

Each employer / line manager within NHS Fife in the case of multiple employments with the Board, would be responsible for ensuring that they provide adequate rest breaks according to the hours worked which the employee works for them.

If the employee is self-employed outside their employment with NHS Fife, there is no requirement for them to give their Line Manager details of the hours that they working. It should be noted, however, that there might still be a potential conflict of interest. In such cases, an employee must advise their Line Manager of the type of work, which they are performing and any contracts they hold.

Appendix 2

DO THE HOURS THAT AN EMPLOYEE WORKS FOR ANOTHER EMPLOYER HAVE TO BE INCLUDED IN THE CALCULATION FOR WEEKLY WORKING TIME?

Yes. Employees must agree with their Line Manager the basis upon which they will provide details of their hours worked within another employment. Line Managers will have to take adequate steps to ensure that patient care is not affected as a result of employees working over the maximum weekly limit.

WHAT DO I DO IF I IDENTIFY THAT AN EMPLOYEE IS WORKING AN AVERAGE OF MORE THAN 48 HOURS?

If the employee is identified to be working more than 48 hours per week and they have not agreed to opt out of the 48 hour weekly working time limit, then the Line Manager must discuss this with the employee and decide the best way forward, e.g. reducing hours with each employer.

CAN AN EMPLOYEE BE ASKED WHO THEY ARE WORKING FOR AND THE TYPE OF WORK, WHICH THEY ARE DOING?

It is not necessary for the employee to give their Line Manager details of their other employer or self employment and the type of work, which they are performing. However, in some cases there may be a conflict of interest. If this is the case, the onus is on the employee to discuss this with their Line Manager.

DOES THIS INCLUDE ANY WORK THAT AN EMPLOYEE MAY DO ON A BANK?

Yes.

WHAT REST BREAKS ARE EMPLOYEE’S ENTITLED TO?

Line Managers must make local arrangements in order for employees to take their breaks.

Where the working day is longer than six hours, all employees are entitled to take a break of at least 20 minutes. Rest breaks should be taken during the period of work and should not be taken either at the start or the end of a period of working time. Employees should also be able to take this rest break away from their workstation. In exceptional circumstances, if it is agreed by the employee and their Line Manager that an employee is unable to take a rest break, the unused entitlement should be claimed as a period of equivalent compensatory rest. However, the Regulations do not require for rest breaks to be paid.

The duration of the break and the terms on which it is provided can be set for employees by a local agreement. Any local agreement about breaks, might deal with matters other than the mere duration of the break, including whether any notice from the employee to their Line Manager of their intention to take the break is necessary.

Appendix 2

In circumstances where work is repetitive, continuous or requiring exceptional concentration Line Managers must ensure the provision of adequate rest breaks as an integral part of their duty to protect the health and safety of their employee. In such cases the advice of the Occupational Health and Safety Advisory Service should be sought.

NB: Within NHS Fife, most staff currently have an entitlement to adequate rest breaks, however, line managers need to monitor this to ensure rest breaks are taken at appropriate times.

WHAT ARE THE MINIMUM DAILY REST PERIODS?

Employees should normally have a rest period of not less than 11 hours in each 24 hour period.

In exceptional circumstances where, because of the needs of the service, this is not practicable, daily rest may be less than 11 hours. In such cases, records should be kept by the Line Manager, which will, on request, be made available to locally recognised trade unions.

Line Managers are responsible for ensuring that compensatory rest is provided, usually within two weeks, where it is not practicable to provide adequate daily rest. Any proposed regular amendment to the minimum daily rest period must be agreed locally in advance with staff side representatives.

It is recognised that in some emergency situations compensatory rest may not always be possible.

WHAT ARE THE MINIMUM WEEKLY REST PERIODS?

An employee is entitled to an uninterrupted weekly rest period of 24 hours in each seven day period for which they work for their employer. This may be averaged over a 2 week period i.e. an employee is entitled to 2 days rest over a fortnight. These must be on successive days. Daily and weekly rests are separate entitlements which should be taken consecutively, e.g. one period of 35 hours consecutive rest per 7 day period. Where this is not possible they should receive equivalent rest over a 14 day period, either as one 70 hour period or two 35 hour periods. This is in accordance with Agenda for Change Terms and Conditions of Service. Line Managers need to ensure that all entitlements to rest are provided.

HOW SHOULD AVERAGE NIGHT HOURS BE CALCULATED?

For the purposes of the agreement, night-time is a period of at least seven hours which includes the period from midnight to 5.00 am. A night worker is someone who is classed as working for at least three hours daily during night-time hours as a “normal course”. Employers should ensure that the “normal hours” of their night workers do not exceed an average of eight hours per 24 hours over a 17 week period.

Appendix 2

It has been agreed that all staff on rotational shift working, whose shift patterns include night time hours, are classed as night workers. Line Managers must ensure that the normal hours of night workers do not exceed an average of 8 hours per 24 hour period over a 17 week period.

Calculations are not affected by absence from work, as an employee’s normal hours of work would remain the same regardless of the “actual” hours worked. Time worked as overtime is not normal work, unless an employee’s contract fixes a minimum number of hours.

Example calculation of average hight hours

Average night hours can be calculated using the following equation:

B - C

Where:

A is the number of hours during the applicable reference period, which are normal working hours for that employee;

B is the number of days during the applicable reference periods; and

C is the number of hours of weekly rest to which an employee is entitled under the Working Time Regulations (i.e. 24 hours for seven days) divided by 24, in order to obtain the figure of the total number of days rest during the period. (It should be noted that this is not the total amount of hours that the employee is at rest each week. Only the hours making up the weekly rest period that the employee is entitled to under the Working Time Regulations are counted).

A night worker normally works 4 x 10 hour shifts each week. Therefore, the total number of normal hours of work for a 17 week reference period would be:

17 weeks of 4 shifts of 10 hours

17 x (4 x 10) = 680

There are 119 days in the reference period and 17 weekly rest periods of 24 hours to which the employee is entitled. Therefore, C is:

17 x 24/24 = 17 days

The calculation becomes the total of hours divided by the number of days an employee would be equipped to work:

680/119 - 17 This equals an average of less than 8 hours in each 24 hour period.

Appendix 2

HEALTH ASSESSMENT FOR NIGHT WORKERS

Employees identified by the Occupational Health and Wellbeing Service as having health problems related to night work be offered wherever should possible the option of transfer to suitable day work with the appropriate pay and conditions of service. Protection of earnings will not apply

TRANSFER OF NIGHT WORKERS TO DAY WORK

A night worker is entitled to be transferred, whenever possible, to other work which is not at night, where a registered medical practitioner has advised NHS Fife that the employee is suffering from health problems connected with the fact that they work at night.

Where an employee’s fitness for night work becomes affected by a disability, NHS Fife has a duty under the Equality Act to make reasonable adjustments, which might include changes to the employee’s hours of work.

Employees identified by a medical practitioner as having health problems related to night work should be offered wherever possible the option of transfer to suitable day work with appropriate pay and conditions of service.

WORKING TIME REGULATIONS ANNUAL LEAVE

Employees are entitled to 28 days paid annual leave, pro-rata for part-time staff. The Terms and Conditions offered to substantive employees in relation to annual leave entitlement are already more favourable than those offered within the Working Time Regulations. Approval of leave requests are at manager’s discretion in accordance with the needs of the service.

The entitlement to WTR annual leave is described in more detail within NHS Circulars PCS(AfC)2008/12, PCS(AfC)2009/1, PCS(AfC)2009/4 and the associated questions and answers, CEL(2011)15, DL(2017) 4, PCS(AfC) 2019/6, DL (2020)9 and DL(2021)03

IS THERE A QUALIFYING PERIOD TO THE ENTITLEMENT TO WORKING TIME REGULATIONS ANNUAL LEAVE?

Under the Working Time Regulations an employee must have worked for the employer for 13 consecutive calendar weeks before entitlement to leave arises. However, during this time annual leave is still accrued. Employees of NHS Fife are not required to adhere to this restriction, thus allowing employees to be able to take up their entitlement to annual leave from the first day of their employment.

WHEN DOES THE ANNUAL LEAVE YEAR COMMENCE?

For the purposes of this agreement, the leave year runs from 1 April until 31 March in each year, unless otherwise agreed within an employee’s contract of employment or as specified for bank workers.

Appendix 2

CAN ANNUAL LEAVE BE CARRIED OVER?

The Working Time Regulations do not allow the carry over of statutory entitlement to annual leave (exception during periods of long term sickness). NHS Fife has separate arrangements with regards to carry over of contractual entitlement to annual leave. Only a maximum of 5 days (one week equivalent) contractual entitlement to annual leave can be carried over unless in exceptional circumstances Exceptional provisions for the carry forward of annual leave entitlement were made due to the COVID-19 pandemic and details of this are contained within DL(2021)03.

CAN ANNUAL LEAVE BE REPLACED BY A PAYMENT “IN LIEU”?

Annual leave cannot be replaced by an “allowance in lieu”, except where the employment relationship is terminated. Where an employee’s employment is terminated during the course of the leave year and where the proportion of leave taken is less than the proportion of the leave year which has expired, then the employee is entitled to a payment in lieu of untaken leave.

ARE THERE ANY NOTICE REQUIREMENTS FOR EMPLOYEES TO TAKE UP ANNUAL LEAVE?

Regulations set out conditions in respect of notice of intent to take up leave entitlement from the employee to the employer or notice of requirement to take or not to take the entitlement at certain dates or times from the employer to the employee. Arrangements should be agreed locally regarding requests for and agreement of annual leave. Leave requests are approved at managers discretion based on the needs of the service but should not be unreasonably refused.

HOW IS HOLIDAY PAY CALCULATED?

Pay during annual leave should include regularly paid supplements, including any recruitment and retention premia, payments for work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work. This would be based on the previous three months at work or any other reference period that may be locally agreed.

Provision was made by circular PCS(AFC)2019/6 that regularly paid non-contractual overtime and excess hours should also be included in these calculations and it was agreed that “regular” is defined as “4 or more separate occasions in the 12 month period which precedes the first day of annual leave”.

WHAT ENTITLEMENT TO LEAVE IS THERE FOR BANK WORKERS?

The Working Time Regulations (WTR) replaced the practice of paying enhanced hourly rates in lieu of leave to bank workers with a system which allocated paid annual leave in accordance with actual hours worked. The commencement date was 1 April 2008.

Line Managers must calculate and authorise the annual leave entitlement at the end of each accounting period.

Authorise requests to take leave in the following period and where this is not possible to give notice and reasons for the non-approval.

Authorise both timesheets / SSTS and the request to take annual leave form where the annual leave is to be taken on a day that the employee is not due to work.

Check that as and when required, bank, casual and substantive employees have a minimum of the WTR leave (28 days per leave year) off work.

Full guidance can be found in NHS Fife conditions of service document CoS021 Guidance On Annual Leave Entitlements For As & When Required, Bank And Casual Staff.

Appendix 2

COMPENSATORY REST

Line Managers are responsible for ensuring that compensatory rest is provided, within a reasonable time from when the entitlement to rest was applicable. This is usually within two weeks from when the entitlement to rest was applicable.

NHS Fife believes that employees are currently afforded equivalent periods of compensatory rest. It is argued that as an employee cannot unless by derogation or individual agreement, work more than 48 hours per week and that they are statutory entitled to 90 hours rest per week and there 168 hours available per week, then:

168 (hours available per week) - 90 (daily and weekly break hours) = 78 hours - 48 hours (working time) = 30 hours that could be used as compensatory rest.

So that if an employee works late shift one day then an early shift the next, they will only get 9 hours rest rather than 11 hours. This employee, however, has two days off per week, where the Working Time Regulations state that they are entitled to 24 hours off. The additional 24 hours are compensatory rest. There will be exceptional circumstances where time off in lieu will be required to be given and local arrangements will be required to be made.

The provision of compensatory rest does not negate a Line Manager’s responsibility for ensuring that staff who are entitled to receive an in-work rest break receive such a break.

In addition, staff who work extra hours, e.g. over-time or additional hours, that are agreed by management are still entitled to receive payment for these hours or appropriate time back in lieu.

RECORD KEEPING

Line Managers must keep records for each employee which are adequate to ensure that the limits specified in the Working Time Regulations are being complied with, as follows:

Weekly working time limits
Night worker’s average hours
The requirements on Health Assessments and transfer of night workers to day work

These records must be made available upon request to locally recognised trade unions.

Maximum working weekly time
Rest breaks
Daily rest
Weekly rest periods
Night work
Annual leave

These records must be kept for a period of 2 years from the date on which they were made.

Appendix 2

Records kept in accordance with the Working Time Regulations should be made available to the appropriate enforcing authorities and also in the interests of good employment relations, to staff side representatives.

An employer may find a number of ways in which to meet this duty, for example, it may be sufficient for an employer with employees who keep regular hours (e.g. 9.00 am to 5.00 pm) for the employee to notify the employer that they are working in excess of the standard working hours. Then the employer could monitor the hours worked by the worker more closely, or adjust the work that a worker is being asked to do, to ensure compliance.

It should be remembered that although an employer is not required to keep records of the average number of hours an employee has worked over the relevant reference period if they have agreed to opt out of the 48 hour weekly working limit, NHS Fife has agreed to undertake this record keeping as good practice.

Each area of NHS Fife is required to implement their own recording procedure under the guidance given.

RECORDS FOR BANK STAFF

Although bank workers conduct their work in unique circumstances, it is imperative that the same record keeping practices are followed as those for permanent employees.

The areas for recording keeping are listed below:

Hours worked under NHS Fife employment
Hours worked for another employer
A written agreement to work in excess of the average 48 hour limit (if applicable)
Health assessment details in cases of night workers
Compensatory rest accrued (if applicable)

APPENDIX 3

EUROPEAN WORKING TIME DIRECTIVE

48 HOUR WAIVER

Employees may choose to work more than the 48 hour average weekly limit, provided that they agree this, in writing, with the Director of Acute Services or the relevant Health & Social Care Partnership General Manager or Executive Director.

This form is intended for this purpose, and should be completed by both the employee and the relevant the Director of Acute Services or the relevant HSCP General Manager or Executive Director, and kept with the employee’s personal file and copied to the Payroll Department.

Name: ………………………………………………………………………..…………………………...

Job Title: …………………………………………………………………………………………….......

Contracted Hours: ……………………………………………………………………..……………….

Period of the Agreement: …………...……………………. To: …………………..………………

Reason for the Agreement: ……………………………………………………………...……………

…………………………………………………………………………………………………….…………

…………………………………………………………………………………….……

If the employee is working for another employer, details of the additional hours they are working with the other employer, must be stated below:

…………………………………………………………………………………………………………………

Period of Notice To Terminate This Agreement By Either Party: One month.

NB: Waiver Agreements will be in place for a period of six months in the first instance, and will be reviewed prior to any new periods being agreed.

Signed (Employee):………………………………………………………………….

Date: ………………

Signed (c Director of Acute Services / Executive Director / Health & Social Care Partnership General Manager)…..………………………

Date: ………………

Appendix 3

(EXAMPLE) EUROPEAN WORKING TIME DIRECTIVE

48 HOUR WAIVER

This form is intended for this purpose, and should be completed by both the employee and the Director of Acute Services or the relevant HSC General Manager or Executive Director, and kept with the employee’s personal file and copied to the Payroll Department.

Name: Frances Jones

Job Title: Nursing Assistant

Contracted Hours: 37.5

Period of the Agreement: 1 March 2015 To: 28 February 2016

Reason for the Agreement: To work for the BNA

If the employee is working for another employer, details of the additional hours they are working with the other employer, must be stated below:

Hours are to be provided on a 17 week basis, which should coincide with the 17 week reference period, the dates of which will be provided by the Line Manager.

…………………………………………………………………………………………………………………………………..

Period of Notice To Terminate This Agreement By Either Party: One month.

NB: Waiver Agreements will be in place for a period of six months in the first instance, and will be reviewed prior to any new periods being agreed.

Signed (Employee): ………………………………………………………………. Date: ……………………

Signed (Director of Acute Services / Executive Director / Health & Social Care Partnership General Manager): …..……………………

Date: …………………..

Working Time Regulations

General Note

See Also

Subjects