Advice Shop: Social workers sometimes find themselves on call or sleeping in residential homes as part of their working week. So what are the implications of the Working Time Directive's 48-hour week, asks Rosie Kett.

Social work often demands that services be provided outside office hours. How can employers and the workforce be sure that when meeting demands for services, they are also complying with the regulations on working time?

The working time regulations became effective from October 1998 in order to implement the EC Working Time Directive. They are health and safety regulations and the enforcing bodies are the Health and Safety Executive and local authority environmental health departments.

These regulations provide a completely new set of rights and obligations relating to work and rest. The main provisions are:

• a limit on the average weekly working time to 48 hours (though individuals can choose to work longer);
• a limit on night workers' average normal daily working time to eight hours;
• a requirement to offer health assessments to night workers;
• minimum daily and weekly rest periods;
• rest breaks at work; and
• paid annual leave.

The Department of Trade and Industry gives an indicative definition of a worker as "someone to whom an employer has a duty to provide work, who controls when and how it is done, supplies the tools and other equipment and pays tax and national insurance".

The regulations allow for different types of agreements. These are collective agreements between an independent trade union and an employer; workforce agreements, where workers do not have terms and conditions set by collective agreements; relevant agreements, an agreement in writing that is legally binding between a worker and their employer (this can take the form of a collective or workforce agreement); and an individual agreement, where an individual may choose to agree with their employer to work in excess of the weekly working time limit (this must be in writing, and must allow the worker to bring the agreement to an end).

Working time is regarded as when a worker is working at their employer's disposal and carrying out their activity or duties. It does not include sleeping at the place of work as residential social workers do, nor does it include being on call but free to pursue one's own activities.

Concerns have been expressed about these interpretations. For example, the residential worker who is sleeping in and on call may not feel that they are free to pursue their own activities. The regulations do allow for local agreements to be made that add to the definition of working time, such as to count all time spent by a worker at their workplace as working time. In addition, there may in future be legal challenges.

There are some special provisions for night workers in the regulations. Broadly, a night worker is someone whose daily working time includes at least three hours of night time, defined as "a period of at least seven hours which includes the period from midnight to 5am". The regulations require employers to offer a free health assessment to anyone who is about to be or is employed as a night worker. Where an assessment indicates that night work is not suitable for an individual they are entitled to be redeployed to other suitable work.

Rest periods fall into two areas: daily rest, defined as "11 consecutive hours between each working day", and weekly rest, defined as "an uninterrupted rest period of not less than 24 hours in each seven day period". It is recognised that there are circumstances where applying these criteria may be difficult, for example shift workers changing shift patterns, split shifts, and sleeping in or on call workers who are called out.

The regulations make provision for "compensatory rest" that should equate to the time which would have been the entitlement. The key issue is that these are health and safety regulations, they are complex, and employers and their workforce need to work together on how to implement them.