Guidance on the Civil Aviation (Working Time) Regulations 2004

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This document provides guidance on the rights and the entitlements provided for in the Civil Aviation (Working Time) Regulations 2004. It gives general guidance only and should not be regarded as a complete or authoritative statement of the law. Nor can it cover every situation that may occur and employers will need to take a view on how the Regulations affect their particular circumstances.

Readers should be aware that there might be developments in new legislation or case law, which affect the existing rights of workers.

Broad principle

These Regulations implement a European Directive (2000/79 EC) which gives effect to a Social Partners' Agreement ('the Agreement'). As a general principle it would not be appropriate for the Government to interpret or further define the Agreement. Where we offer guidance it is to facilitate the implementation of the Directive and to ensure compatibility with existing Regulations.

We stated in our consultation document of 29 November 2002 that working time provisions serve a different purpose from flight and duty time limitations and we would envisage keeping them separate where possible. The Regulations are therefore separate from the Air Navigation Order 2000 ¹ . They are made under the European Communities Act 1972, which provides the legal powers normally used to implement European Directives into domestic UK law.

It is the employer who is responsible for ensuring that the worker receives the protection provided for by these Regulations. Employers will need to consider whether their working practices need to be changed in light of the rights conferred on their workers

Scope

The Regulations apply to cabin and flight crew working on board civil aircraft flying for the purposes of public transport and employed by employers established in the United Kingdom. Notwithstanding the lack of clarity in the Directive, on legal advice we decided that the Directive could not apply to workers in the corporate aviation sector.

Flight or cabin crew working in corporate aviation and in the wider General Aviation sector are covered by Council Directive 93/104/EC (the 'horizontal' Working Time Directive), implemented in the UK through the Working Time Regulations 1998 (as amended). Guidance on these Regulations can be found on DTI's website: http://www.dti.gov.uk/employment/employment-legislation/employment-guidance/page14232.html

Entitlement to annual leave

Workers are entitled to a minimum of four weeks paid annual leave from their first day of employment or a proportion of four weeks in respect of any period of employment less than one year. The leave must not be replaced by payment in lieu, except where the employment is terminated. This does not affect contractual leave over and above the minimum entitlement.

A week's leave should be equivalent to the time a worker would work in a week. In general this should be straightforward. However, where a worker works irregular hours, the worker would have a right to annual leave that would allow them to be away from their place of work for a week.

This provision is identical to one in the 'horizontal' Working Time Directive. In line with UK implementation of that Directive, leave entitlement under the regulations is not additional to bank holidays. There is no statutory right to take bank holidays off as part of annual leave entitlement.

Health assessments

If you are an employer you must offer crew a free health assessment before they first start working for you and on a regular basis after this. The latter also applies to existing employees. In many cases it will be appropriate to do this once a year.

Employees do not have to take the opportunity to have a health assessment but it must be offered by the employer.

In the case of flight crew, the assessment and the statutory medical examination (as provided for in the Air Navigation Order) serve different purposes and should be considered as separate. However, the statutory medical examination may provide sufficient information to make an assessment. With the individual's consent in writing, the CAA may be able to provide this information. The CAA would be likely to charge for this service

A health assessment can be made up of two parts: a questionnaire and a medical examination. The latter is only necessary if the employer has doubts about the worker's fitness for night work.

Employers should get help from a suitably qualified health professional when devising and assessing the questionnaire. This could be from a doctor or nurse who understands how night working might affect health.

The health assessment should take into account the type of work that will be done and the restrictions on the worker's working time under the regulations.

If an employee suffers from problems that are caused or aggravated by night work, the employer should transfer him or her to suitable day work where possible.

For the purposes of determining whether a duty includes "night time", the relevant calculation should be based on local time to which the individual is acclimatised.

Health and safety protection at work

At present there is no UK body with regulatory responsibility for occupational health and safety on board aircraft outside UK airspace, nor any regulations or guidance which apply. Because of the unique nature of the aircraft environment, enforcement of occupational health and safety considerations have previously been disapplied on UK registered aircraft. The implementation of clause 5 of the Agreement gives workers rights in this area for the first time that will reinforce the health and safety practice that is exercised by aircraft operators on a general duty of care basis.

Given the lack of regulatory knowledge or experience in this field, it would be inappropriate for the Government to define "adequate safety and health protection" for the purpose of these Regulations. Instead, recognising that further work needs to be done, a working group is being established with representatives drawn from the Civil Aviation Authority (CAA), the Health and Safety Executive (HSE), employers' and employees'/trades union representatives to take this forward. We envisage that the work of this group might include: establishing the nature and extent of current practice in this field; sharing best practice; setting up a coherent injury and illness reporting system; and issuing agreed guidance on occupational health and safety protection on board an aircraft. This approach recognises the uniqueness of the aircraft cabin environment, the principle of proportionate regulation and the primacy of aviation safety regulations.

The structure and remit of the group is to be agreed. You may be interested to read of the work of a similar group which exists in the United States: http://www.faa.gov/avr/afs/ashp/action-plan.rtf. The American initiative is not presented as a model for full adoption but rather to reflect the underlying principles that would support a pragmatic and equitable UK arrangement.

Pattern of work

An employer must ensure that a crew member is given adequate rest breaks and, where practicable, offered alternative work of a different nature within the scope of his existing duties. We consider that Section A, paragraph 2.3 of CAA Guidance note CAP 371 is relevant to this regulation.

Provision of information

Employers will need to keep adequate records to show that they have complied with the annual working time limits. The CAA can oblige an employer to provide details relating to the working patterns of crew used and these records should be retained for at least 24 months.

Maximum annual working time

An employer must ensure that crew do not work more than 2,000 hours in any 12 month period, of which total flying time must not exceed 900 hours.

Periods spent working overtime and on standby duty are captured under the definition of "working time" and should therefore be taken into account when calculating an individual's total annual working time. It should be noted that there was not previously any requirement in law or in CAA guidance which guaranteed a maximum of 2,000 hours annual working time.

Rest days

Employers must give crew at least seven rest days in each calendar month and 96 days in each calendar year. These may include any rest periods required by law.

Clause 9 of the Agreement uses the terms calendar month and calendar year. There is no scope for the UK to interpret these otherwise and it should be noted that this conflicts with Section B, paragraph 20.4 of CAA Guidance note CAP 371 (and paragraph 23.3 for helicopter crews) which uses consecutive weeks as the reference period.

Enforcement

The Civil Aviation Authority will be the principal enforcement body for regulations 5(2) 6, 7(2)(a) and 8 to 10. If you are a crew member and you feel that you are not receiving your rights, or that any of these regulations have been breached,

Talk to your manager - you may be able to settle the matter straight away.
Contact a trade union representative (if you have one). They will be able to advise you what to do.
Contact the Civil Aviation Authority at WorkingTimeEnquiries@caa.co.uk who will be able to provide further assistance, or alternatively write to:

Working Time Adviser
Civil Aviation Authority
Aviation House
Gatwick Airport South
West Sussex
RH6 0YR

The entitlements to annual leave, a medical assessment and the right to transfer to day work, where this is possible, as well as the entitlement to be offered alternative work within the scope of an individual's existing duties as part of an organised pattern of work will be enforced through employment tribunals.

If you are a crew member and you feel you are not receiving your entitlements under regulations 4, 5(1), 5(4), 7(1) or 7(2)(b), it is suggested that you take the following steps:

Talk to your manager - you may be able to settle the matter straight away.
Contact a trade union representative (if you have one). They will be able to advise you what to do.
Seek conciliation through the Advisory, Conciliation and Arbitration Service (ACAS).
If you cannot resolve the matter, you may wish to consider making a claim at an employment tribunal.

ACAS can offer the services of a conciliator to help the employer and worker to reach a settlement without the need for a tribunal hearing. Part of the conciliator's role is to explain how tribunals work and how a tribunal arrives at decisions. This service is free of charge. If you want to take a complaint to a tribunal, you should do so within three months. The tribunals offer an informal way of ensuring that workers are given their rights. These tribunals generally have three members: a legally qualified chairperson and two other lay members whom have experience of dealing with work-related problems.

For help with matters about paid annual leave, call the ACAS public enquiry point:

If you need information about making a claim or going to a tribunal, please call the Employment Tribunals Service enquiry line on 0845 7959775.