On 6 April 2006 the Working Time (Amendment) Regulations (the Amendment Regulations) will come in to force and will remove the exemption for partly-unmeasured working time under regulation 20(2) of the Working Time Regulations 1998 (the "WTR").
Regulation 20(1) provides that the WTR's rules about average weekly working, rest breaks, night work and record keeping do not apply where "on account of the specific characteristics of the activity in which [the worker] is engaged, the duration of his working time is not measured or pre-determined or can be determined by the worker himself".
Regulation 20(2) covers workers whose working time is only partially measured or predetermined so that any further working time which is neither measured nor predetermined, or can be determined by the worker themselves, does not count for the purposes of the limits on weekly working time and night work.
The Amendment Regulations will remove regulation 20(2) which provided flexibility to employers who engaged individuals who would work partially unmeasured hours, for example managers who would work set hours but would also have an element of autonomy for further working time. Employers ought to beware the individuals who choose to work extra hours on top of their predetermined hours and ensure that opt outs have been signed.
Two days after it was announced that regulation 20(2) was to be repealed, the Advocate General gave in the case of Commission v UK (C 484-04) that the exemption in regulation 20(2) of the WTR breached the EC Working Time Directive.