Rights and entitlements

    There
    have been a number of changes to employment legislation which have
    given workers added rights. Jude Brimble outlines what workers
    should expect from their employers and what they are entitled
    to.

    I know
    there has been lots of new employment legislation recently but how
    do the working time provisions affect me? I am a residential care
    worker.

    Many of
    the new employment rights involve complex law, so obtain detailed
    advice from your trade union if you feel that you are not receiving
    your entitlements. However, here is a brief guide to the question
    raised.

    – Many
    care staff work long hours because of staff shortages, but you have
    the right not to work more than 48 hours a week on average. This
    can be averaged over 17 weeks, but in a residential care home where
    services have to be provided around the clock, the averaging period
    can be extended to 26 weeks.

    The
    working time regulations are designed to protect health, safety and
    well-being – long hours at work are not good for anybody. However,
    they do contain a provision for individual workers to sign a
    voluntary opt-out of the maximum 48-hour week. An employer may ask
    a worker to sign an opt-out, but there is no obligation that they
    must sign – seek advice from a union before signing anything.

    – The
    question of whether on-call working counts towards the 48-hour
    limit is unclear at the moment. But it looks as though a European
    case could establish that on-call working counts towards the total
    if a worker is not free to pursue normal leisure activities, for
    example having to remain on the premises.

    – You
    are entitled to daily rest of 11 hours every day – that means that
    the longest shift you are allowed to work is 13 hours. You must
    also have a rest of at least 24 hours in each week. This does not
    have to be on the same day each week. An employer could offer the
    first day of one week and the last day of the next. This means that
    the maximum period to work in a row without a day off is 12 days –
    as long as you have the next two days off.

    In
    addition, you should have a break of 20 minutes away from where you
    normally work, after you have worked six hours, although your
    employer unfortunately is not obliged to pay you for break
    periods.

    In a
    residential care setting the employer can vary any of the above
    rest breaks as long as they provide “equivalent compensatory rest”,
    such as having the rest break you missed as soon as possible.

    – There
    are special regulations to protect night workers such as
    residential home workers because such work can seriously disrupt
    your health and personal life.

    By law,
    the definition of a night worker is anyone who works at least three
    hours of their daily working time during night hours, either for
    the majority of their working days or as a normal course of their
    work, such as rotating shifts, which include regular nights. Night
    is defined as 11pm to 6am.

    There is
    a limit of eight hours per day for night workers, but unfortunately
    this does not apply if you work in residential settings where there
    is a need for round the clock care. However your employer must give
    you regular health assessments to make sure that you are fit to be
    doing night work – if you are not you should be offered suitable
    day work.

    – You
    are entitled to four weeks’ paid holiday a year, pro rata for
    part-time staff. However, there is no additional entitlement to
    paid bank holidays, so your employer may include bank holidays
    within your four weeks’ holiday.

    To
    qualify for paid holiday you must have worked continuously for your
    employer for 13 weeks. This also applies if you work for an agency,
    even if you have done several different placements within that
    time.

    Remember
    this is only the minimum provision an employer has to make. Of
    course many employers will have policies over and above this – but
    it is important you know the minimum entitlements.

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