How should Working Time complaints be dealt with?

Employment tribunals, rather than the civil courts, may soon be allowed to hear claims from employees required to work excessive hours. Brian Gegg and Asten Hawkes explain the implications for employers

Following a review of the split jurisdiction in employment law between the employment tribunal and the civil courts, the Law Commission has published a report containing 23 recommendations to improve the way in which employment disputes are handled in the UK. One of the report’s most interesting recommendations is the extension of the employment tribunal’s jurisdiction in dealing with claims under the Working Time Regulations 1998 (WTR). 

Under existing law, while the employment tribunal has the ability to hear complaints by individuals in areas such as rest periods and statutory annual leave, other provisions of the WTR relating to working time limits must be enforced elsewhere. For example, the Health and Safety Executive (HSE) is able to enforce complaints relating to limiting the working week and limiting working time for night workers, and the civil courts are able to hear claims regarding breach of the requirement that workers must only undertake a maximum 48-hour average working week. 

The report considered this split of jurisdiction confusing for employees, employers and agencies alike, leading to a lack of awareness of enforcement mechanisms. It further noted that the HSE’s Public Register of Notices (which provides its enforcement statistics) contained just nine entries in respect of the WTR over the last five years. The report accordingly deemed the current law inadequate and in need of reform. It therefore recommended the extension of the employment tribunal’s jurisdiction to allow it to hear complaints from workers in respect of the provisions that dictate a maximum 48-hour average working week for workers, and provide the maximum working hours for both young and night workers (maximum hours provisions).

The Law Commission believes that, in implementing its proposals, there will be a stronger, more comprehensible enforcement mechanism for the maximum hours provisions. It further asserts that employment tribunals are the correct domain for such claims, without the barrier of issue fees but with judges who are experts in the field of employment law. 

However, the reforms have drawn criticism from businesses. Many have expressed concern that the proposed changes would encourage workers to seek resolution through litigation rather than addressing concerns with their employer first, which could damage ongoing working relationships. It may be that a worker failing to attempt to resolve an issue internally before issuing a claim may receive a reduced damages award, but this will provide little comfort to an employer that must still incur the cost of defending a claim, and the experience with the short-lived statutory disciplinary and grievance procedures in employment tribunals reminds us that forcing employees to complete internal procedure before bringing claims does not work.

There is further concern that, in removing the barrier of issue fees by permitting claims in the employment tribunal (and we know that issue fees do deter applicants from bringing claims) there could be an increase in frivolous claims, which could be expensive for employers, both in defence and in negotiating potential settlements. Indeed, unlike in the civil courts, in the employment tribunal costs are very rarely awarded to the prevailing party, so there is little risk to an employee bringing a claim. 

However, the impact of the reform may not be as far-reaching as critics claim. This is because the current law allows workers to opt out of the maximum 48-hour average working week by agreement with their employer. Indeed, many modern employment contracts and service agreements incorporate an express opt-out provision, which will operate from the beginning of the working relationship. 

Accordingly, though the hope of the Law Commission is that employers will think more carefully about the way in which they operate their businesses, so as to prevent the need for workers to work excessive hours, in our view this is merely another reminder for parties to carefully consider the terms of their contracts before entering into an employment relationship, so as to avoid the expense of fallout at a later stage.

Brian Gegg is a partner and Asten Hawkes a solicitor at BDB Pitmans