Legal advice: Ready to call time?
Longer opening hours could bring with them problems concerning staff working hours.
By Rebecca Caws of thePublican.com's team of legal experts at London solicitors Joelson Wilson.
No doubt you'll agree that the traditional ringing of the bell and calling of time at the bar can be very unwelcome for customers when they're out celebrating. Is this soon to be a thing of the past as the new Licensing Act enables us to try to emulate our European counterparts? Or will many pubs forego the chance to increase their hours and instead maintain the quirky 11pm closing time ritual?
From an employment law perspective, there are two areas which may raise issues if trading hours are extended:
- use of the opt-out of the Working Time Regulations 1998 (WTR)
- the National Minimum Wage.
Working Time Regulations
Under the WTR the maximum number of hours a worker may work per week is limited to 48. The limit is not popular with everyone - some employers find this restrictive while some workers would like the opportunity to work more hours.
It is for these reasons that many workers in the UK choose to "opt out" of the 48-hour limit. This is usually achieved by including wording to that effect in a worker's contract of employment.
This method of opting out has come under fire from Europe. The main complaint is that the legislation is there to protect workers, so any opting out must be voluntary. An opt-out contained in a contract poses problems because some workers feel unable to question it. How many new employees will be prepared to negotiate their contracts at the risk of annoying their new employer?
The current system has been under review and is likely to be changed. One possibility is that the opt-out will have to be a separate agreement of limited duration (not part of the contract of employment). This will result in further red tape. Those establishments with longer opening hours may also experience difficulties finding staff who are prepared to work extra hours.
National Minimum Wage
If we consider the opt-out together with the minimum wage there is a serious cost implication. Since its introduction in 1998 the wage has increased annually. The current hourly rates are £4.85 (workers aged 22 and over), £4.10 (workers aged 18 to 22) and £3 (workers aged 16 or 17). The TUC has recommended an increase in the adult rate to £5.35 in October 2005 and to £6 by the same time the following year and that the adult rate be paid to those aged 18 and over.
If the opt-out is no longer an option, establishments with longer opening hours would have to employ extra staff. Taking into account annual increases in the minimum wage, this could lead to unrealistic staffing costs, which in turn will affect profits and the hours that a pub will be able to afford to trade.
