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Young people and long hours: Legal view

Last month Jamie Oliver faced heavy criticism and a Twitter backlash following a scathing attack on Britain's "wet behind the ears" youths, after he commented that all of his restaurants would have to close without immigrant workers who are "much stronger, much tougher".

Just as controversially, he described the EU regulation's 48-hour working week as "half a week's work", saying that when he was in his 20s, it was normal to work 80 to 100 hours.

In the same week the tragic case of Moritz Erhardt hit the headlines. The 21-year-old student collapsed and died during a seven-week internship at Bank of America, after reportedly working through the night eight times in two weeks.

Together these reports have prompted a heated debate on the work ethic of Britain's young people, and the line between hard work and exploitation.

Half a week's work?

Under the Working Time Regulations 1998 (WTR), employers in the UK are required to take all reasonable steps - in keeping with the need to protect workers' health and safety - to ensure a worker's average working time, including overtime, does not exceed 48 hours per week. The primary aim of the WTR is to protect employees' health and safety by preventing overwork and exhaustion. The WTR also requires employers to allow workers one rest break of 20 minutes in any shift longer than six hours; a day off a week (or a weekend a fortnight), and 11 hours' rest between shifts.

However, crucially, the UK (unlike its European neighbours) negotiated the right for employees to be able to 'opt out' of the 48-hour limit on average working time. Employers can modify the limits on working time and rest breaks if they have negotiated terms in a collective agreement with the employees' trade union or in a workforce agreement negotiated with employees' representatives.

If the employer has an individual agreement with the employee direct, the employer and the worker can agree to disregard the 48-hour limit altogether. Across the private sector, conforming to the 48-hour working week is rare, since the majority of employees agree to waive their rights under the WTR and work more than 48 hours, on average, per week. However, employees can rely on their right under the WTR and refuse to work more than 48 hours per week, in which case they are protected from being subjected to a detriment by their employer.

If they are subjected to a detriment, including a formal warning or dismissal, as well as a more trivial detriment, they can make a complaint to the employment tribunal. The civil courts have refused to grant employees an injunction preventing their employer from forcing them to work in excess of the 48-hour limit, on the basis that their remedy lay in a complaint to the employment tribunal if they suffered any detriment for refusing to do so. In addition to tribunal claims, from a regulatory perspective the HSE or Local Authority Environmental Health Departments can enforce the WTR by issuing improvement or prohibition notices and fines, with potentially unlimited fines and up to two years' imprisonment for directors for failing to comply with a notice.

Driving productivity without exploitation

How can employers get the most out of their workforce, including young workers, without encouraging excessive hours and exploitation? Research commonly reveals that a significant proportion of non-management employees are disengaged. Increasing employees' productivity during working hours is evidently more beneficial than encouraging a longer-hours culture.

There are a number different ways to get more out of your existing workforce, with different options suiting different sectors. On the increase is providing economic incentive schemes for employees at all levels, not just senior-level staff, so all employees have a stake in the business's success, and/or their own personal contribution is rewarded.

Other studies indicate that recognition is often a more powerful motivator than money - and different businesses can find different ways of demonstrating non-financial recognition for hard work and valuable contribution. Careful management of workplace absence further increases productivity.

Hiring foreign workers: tips for employers

Whether employers have a largely British workforce or hire foreign workers, they must have the same rigorous systems in place for checking employees' entitlement to work in the UK, to ensure they comply with the UKBA's requirements to check right-to-work documents, and to ensure they avoid the risk of discriminating during the recruitment process.

Employers should not rule out applications from employees who would require a permit to carry out the job, and should not raise the issue of an applicant's right to work in the UK until a successful candidate has been selected on the basis of merit, as this enables the employer to show that immigration status had no bearing on selection. Instead, any offer should be made conditional upon the employee having and maintaining the right to work in the UK.

And whether Jamie is right or wrong about our European colleagues being better grafters, his businesses should take care not to select candidates based on their nationalities, and take each applicant on their own merits, to avoid discrimination claims from disgruntled young Britons.

Susan Thomas is a senior associate at law firm Charles Russell