You know you are working an unreasonable number of hours in your University role…
What you don’t yet realise is that your employer is likely breaking the law as a result
The vast majority of academic and professional service (1) employees in UK universities are employed through Terms and Condition that violate the UK’s universal employment right to maximum weekly working hours.
This meso-explainer — which summarises more lengthy analysis published elsewhere — outlines the legal issues you might want to talk to your Human Resource or Union representative about.
If you are involved in current University College Union (UCU) Industrial Action, with the aim of reducing working hours, reading on is a great compliment to relinquishing wages through a marking boycott!
H&S Protection via Weekly Working Limits to Which You are Entitled
Every single UK employee is entitled to a maximum working week of 48 hours; every single employer has the legal obligation to ensure this maximum is not breached.
There are legitimate exceptions to this universal law. One is for “autonomous” employees who self direct their time in duration and scheduling, and therefore have “unmeasured working time”. These workers don’t need a legally protected working week: if they want to work less, they can simply choose to do so. As a consequence, it would be unreasonable to expect employers to monitor and enforce maximum working time, as the individual can choose how to allocate their time. An example of such a genuinely “autonomous” worker from the legislation is a “managing director”.
How UK Universities Withhold Rights to a Maximum Working Week
The vast majority of UK Universities have used the “autonomous” / “unmeasured working time” exception, either explicitly, or implicitly, as a standard part of the Terms and Condition through which academic and senior professional service staff are contracted since the early 1990s.
The justification for these standard Terms and Conditions is that UK Universities, and the University and College Employers Association (UCEA) — that has provided advice on the matter —claim that the limited flexibility available to senior professional service staff and academics to organise their time, means they can never work more than they want: they are treated as autonomous workers.
Why Universities are Unambiguously Breaking the Law
In 1998 the UK government was required to implement the EU Directive on maximum working weeks, and therefore provided all UK workers with this health and safety protection (see HSEN 2019). The UK government also promulgated the “autonomous” worker exception, as per the European Directive.
The following year, 1999, Parliament amended the UK’s Working Time Regulations to clarify how the “autonomous” exception applied to a problematic example of workers who did not neatly fit into the “autonomous” worker legislation as it was understood.
The amendment focused on those workers who were undirected by their employer for part of the time — i.e. like university staff — and had some degree of flexibility about when and for how long they undertook tasks, but still had some portion of their weekly working hours directed in scheduling and duration.
The new UK legislation ruled that these individuals, despite being told when and for how long to work for some port of their time, should still be considered “autonomous”, and therefore did not need the protection of a maximum working week.
The logic behind this amendment was presumably that with some control, employees could avoid unreasonable and illegal working hours. As a consequence, employers did not need to monitor the working hours of such workers, nor ensure they stay below the limit, as again, it was assumed these individuals would only ever work for as long as they wanted.
Observing the UK’s amendment, the European Commission raised an informal objection to this interpretation. They observed that the UK application allowed an employer to require a large amount of directed activity, potentially already in excess of the legal maximum, but dodge the legal restrictions by then offering a limited portion of more flexible time. In this situation, it would make no sense to classify the worker as sufficiently “autonomous” to avoid over work, if for example, just one hour, perhaps the 50th of the week, is free to use as the worker wanted.
Because the UK Government refused to make changes to their domestic law, the EC took them to the European Court of Justice (ECJ) in 2002. The subsequent ruling was unambiguous: the UK Government had allowed employers to treat workers with some flexibility, as legally defined autonomous workers; this was not acceptable and therefore ruled as illegal.
Following the ECJ ruling (2006), the UK Government eventually further revised domestic legislation in 2009. They withdrew the 1999 amendment, and instructed the UK’s Health and Safety Executive, responsible for enforcing this law, to provide new guidance.
The guidance then published by the UK’s HSE unambiguously stated that unless a worker has “total control” of their working hours — which other EU jurisprudence states is defined in terms of duration and scheduling of time — they cannot be legally classified as “autonomous” (see I-Coroner 2006; HSE). There is no debate or discussion to be had; there is nothing technical or impenetrable to understanding.
Essentially, UK universities have written Terms and Condition that were supported by the 1999 amendment, but since 2009 have been contrary to the spirit, meaning and technical definition of the Working Time Regulations. This is a criminal offence and all those employers guilty of this offence are open to legal prosecution; staff that have suffered detriment as a result are arguably entitled to compensation.
Conclusion: Taking Action on your Employment Rights
The vast majority of, although not all, UK Universities have misapplied UK law on the maximum working week, specifically the autonomous worker exception, since 2009.
Throughout this period, commentators, including the University College Union (UCU) have observed that university staff work an unreasonable and unhealth number of hours. Universities’ criminal behaviour is therefore partly responsible for health breakdowns. Managers of universities are by extension, morally and criminally liable for any detriment suffered.
If you are one of the estimated C.100,000 university workers employed on the basis of a contract that is incompatible with the law, you should speak to your Human Resource and/or Union representatives with some urgency.
If you are one of the smaller number of UK university workers currently engaged in Industrial Action with the objective of obtaining a reduced working week, you should be asking yourself why you need to strike for a legal right you are instantly entitled to anyway! Sadly, the UCU have no answers, but that’s a story for another day.
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Notes
(1) Professional Service staff refers to elsewhere Administrative / Academic Related university employees.
