Death of an Intern raises working Time Questions
After the death of a German Intern working at Merrill Lynch in August, The Bank of America has now said that it will review its working practices and culture of long hours, with a particular focus on junior members of staff. According to colleagues, 21 year-old Moritz Erhardt had pulled three consecutive ‘all-nighters’ before being discovered by emergency services. It has not yet been confirmed that Moritz’s long working days caused his death but regardless of whether or not it did, there are serious questions to be answered in respect of working time and health ad safety.
For those working under UK contracts of employment, there are is some protection in the form of The Working Time Regulations which were introduced to Great Britain in 1998. They regulate working hours, rest breaks and holiday entitlement.
Some of the obligations employers have under the Regulations:
- To ensure that each worker’s average working time (including overtime) does not exceed 48 hours per week
- To allow workers the following rest periods (unless exempt):
- 11 hours’ uninterrupted rest per day;
- 24 hours’ uninterrupted rest per week (or 48 hours uninterrupted rest per fortnight); and
- a rest break of 20 minutes when working more than six hours per day.
- To allow workers 5.6 weeks’ paid holiday a year (equivalent to 28 days for a full-time worker)
- To ensure that night workers’ normal hours of work do not exceed an average of eight hours per day
- To transfer a night worker to day work where possible, if a doctor advises that the night work is causing health problems
- To give workers “adequate” rest breaks where the pattern of work is such as to put their health and safety at risk, in particular where work is monotonous
- To keep and maintain records showing whether the limits on average working time, night work and provision of health and safety assessments are being complied with in the case of each worker
48 hour working week
Most workers are limited to working 48 hours per week. If an individual has more than one job, this time frame stretches across both roles. Employers who are aware of workers having another job should make enquiries into the number of hours being worked to ensure the 48 limit is not being exceeded.
There are some professions which are excluded from the 48 hour working week, for example the emergency services, and it is possible to opt out of the 48 hour working week. Employers should be aware that if their workers have signed an opt-out agreement, they cannot be required to work excessively long hours if this creates a reasonably foreseeable risk to their health and safety or the health and safety of others.
Some employers will include a clause in the contract of employment specifying that an employee has agreed to opt-out of the 48 hour working week. Employers should be mindful that this has been heavily criticised. It places potential employees in a very difficult situation and they may feel they have to sign the contract with this clause or they will not be offered the role. However, there is currently no prohibition on refusing to employ someone unless they opt out. Furthermore, case law suggests that the only remedy available to a worker who complains about having to work in excess of the 48-hour average is an action for detriment or unfair dismissal in the tribunal.