Employment law specialists feel companies should not expect the current relaxed climate to continue. At some point, they say, the Health and Safety Executive in likely to choose to make an example of at least one company in a high-profile case. Companies should therefore make sure that, at the very least, they introduce basic monitoring of staff hours so that they will have some data to back up their case.

The problems of timekeeping solutions

wtsBut finding ways to track employees’ working hours effectively can be difficult. First, the regulations don’t make it clear whether activities such as travelling to meetings or holding informal discussions with colleagues over lunch count as working time. Second, many timekeeping solutions are problematical when it comes to IT staff because they don’t always work from a single location or keep regular hours.

Helen Jerry, a solicitor with Magrath & Co who specialises in employment law, points out that the headache of monitoring hours is compounded in the IT sector by the fact that many staff resent the imposition of patriarchal systems and what they see as unnecessary paperwork Dr Robina Chatham, a lecturer in information systems at Cranfield School of Management, agrees: “When timesheets are introduced, productivity can go down because people start clock-watching,” she says. “It creates a culture in which people feel there’s no give-and-take in their direction, so they don’t offer any back”

One solution suggested by Jerry in for employers to include terms in contracts which oblige staff to keep their own records of their working hours and to supply them to their employer on request. Keith Statham, general manager of time and attendance systems supplier Kronos, offers the view that where IT teams have not recorded their hours in the past, time and attendance software could be presented as a way to track activities, not just hours, in order to help managers understand how resources are being applied. Monitoring of hours worked to comply with the regulations can then be undertaken as a byproduct of collecting this activity data.

Contract employees’ rights

You also need to look at how the regulations will affect contract staff as well as permanent employees. Short-term contractors can acquire rights under the regulations, such as the right to paid holidays, because the regulations have been drafted to apply to “workers” rather than simply “employees”. Only genuinely self-employed contractors in business on their own account will automatically be exempt. David Coward, a legal consultant to human resources consultancy Hemmingway, advises IT managers who use contractors to make sure either that they are genuinely self-employed or that their contracts are carefully worded to ensure they are excluded from the regulations. To avoid the annual leave entitlement, he suggests contracts should be for a limited period, ideally less than 13 weeks.

The main concern among IT employers who are taking the regulations seriously, according to Jerry has been to draft contract clauses for permanent staff agreeing to opt out of the 48hour limit. A major risk here, she warns, is that incentives offered to stuff to sign these opt-out clauses must not disadvantage those who choose not to opt out. “For example, you can’t offer a straight bonus for contracting out,” she says. “Any bonuses would have to relate to output, not hours worked, and should be concerned with issues like quality as well as quantity, in order to give people who haven’t opted out a chance to make up ground on those that have.”

However, Chatham feels IT department should not be looking to get around the regulations but instead should be using them as a way to challenge the current long-hours culture which, she claims, is actually counter-productive. “These days, people often feel it’s important to be seen to be there, even if there’s no real work to do,” she says. “I’ve even see people create ‘work’ to allow them to stay late.”

She believes that encouraging your staff to work shorter hours may actually increase their output — and she has practical experience to prove her point. In a previous job, she worked for a boss who had been a workaholic putting in long hours and expecting his staff to do the same — until his wife became seriously ill and his perspective on family life changed. After that, she says, he sent everyone home at 5.30pm but found that the productivity of the department soared because staff were no longer so tired or stressed.

While some of this increased productivity will come from staff working more intensively during these shorter hours, Chatham says better management techniques can also help. For example, is work being allocated or delegated properly? Chatham knows of occasions when some staff have been overworked while colleagues have been underemployed. Better project management will also minimise time wasted on fire-fighting and rework “People often leap into coding and don’t spend enough time on analysis up front, so that work is wasted,” she says.

Workers’ rights

Employers cannot expect workers to complete more than 48 hours a week averaged over a reference period of up to 17 weeks. Night workers should not work for more than an average of eight hours in any 24-hour period Workers are entitled to an uninterrupted rest period of at least 24 hours in each seven-day period (or 48 hours in a 14-day period) and an uninterrupted daily rest period of at least 11 hours

Since 23 November 1999 workers have entitled to at least four weeks annual leave Workers may waive some of these rights by signing a written agreement with their employer. This agreement may be terminated by either side giving between seven days’ and three months’ notice Any pressure placed on workers to opt out of the regulations may be unlawful. Workers choosing not to opt out should not be placed at a disadvantage compared to those choosing to do so

Employers must keep sufficient records to allow them to demonstrate they are complying with the regulations