1st December 2021

Employment Law Advent Calendar: Day 1

It’s the 1st December and you know what that means: The countdown to Christmas has officially begun! And I have a present for you. Every morning from the 1st December to the 24th December I’m going to share some tree-mendously good employment law hints and tips, all with a Christmas twist, that you’ll never fir-get. An employment law advent calendar, sadly, without the chocolate, but your antidote to festive HR headaches. So, hold on for deer life and read on to find out who or what is behind ‘door’ number 1. Yule be sorry if you don’t!

It’s Santa and his elves.

Everyone knows there’s a workshop up at the North Pole where Santa’s elves tirelessly work to make sure every child wakes up on Christmas morning to a present from Santa. However, you may not have stopped to think that as the world’s population grows, so too does the elves’ workload – and their hours of work. Santa has to make sure that he stays compliant with the Working Time Regulations 1998.

If you, like Santa, have a team of elves working for you that you might be asking to perform a Christmas miracle this December, here’s what you need to know.

Who do the WTR apply to?
They apply to “workers” meaning they are likely to apply to all the staff that you use over Christmas – employees, temporary workers and the majority of agency workers. They do not apply to the genuinely self-employed.

What do the WTR say about working hours?
The WTR provide for the following:

  • A maximum average weekly working time of 48 hours over a 17 week period. This is the only requirement a worker can opt-out of.
  • An uninterrupted 20 minutes break where working 6 hours or more.
  • 11 consecutive hours between shifts unless the worker changes a shift pattern and can’t take the full 11 hour break before starting the new pattern.
  • An uninterrupted 24 hours rest period each week or 1 uninterrupted rest period of 48 hours over a 14 day period.
  • Night workers are workers who, as a normal course, work more than 3 hours between 11 pm and 6 am and they must not work more than an average of 8 hours in a 24 hour period and must receive a free health assessment before starting night work and at regular intervals after that.

What about children and young workers?
Children between the age of 13 and school leaving age are allowed to work but there are strict rules set by local authorities, so they can differ across Scotland. Once a young person has reached the minimum school leaving age at 16, they can go into full-time employment but they have extra rights up until they turn 18. There are restrictions on the number of hours they can work per day and on night working and they are entitled to longer breaks and rest periods. Always take advice before employing any children or young workers.

Why comply with the WTR?
It’s an offence for an employer not to comply with the WTR. The Health and Safety Executive acts as the enforcement agency and hefty fines can be imposed.

Even the kindest and most accommodating of workers will become aggrieved if they believe their rights are being breached. Whilst elves are renowned for their good nature, an aggrieved elf might want to spoil Christmas for everyone by deliberately snapping candy canes and sabotaging toy production. If one of your workers feels aggrieved, for example because he/she is regularly missing out on breaks or believes they have been dismissed for refusing to go without their 11 hour rest period, he or she may bring a claim in the Employment Tribunal, which is costly in terms of both your time and money to defend.

Make sure you elf a merry little Christmas and contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland for help and advice.

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP



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