Tribunals to hear working time regulations’ claims

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 and has 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. However, many businesses 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. 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.

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