Introduction
This article is based on the 1998 Working Time Regulations. They have been updated numerous times since 1998. This article includes the latest updates.
The article will be useful to both employers and employees. It states what both parties must do to comply with the regulations, as well as ways of redress. Please note that the regulations are set to change again. “Opt-out” schemes are currently under discussion. They are most likely to be removed. When they will be removed is not clear.
Working time regulations are in place to protect workers from being over-worked.
If you are self-employed, running your own business and are free to work for different clients and customers, these regulations do not apply to you.
Who is a worker?
A worker is someone who has a contract of employment, is paid a regular salary or wage and works for an organisation, business or individual. Trainees are also workers.
The maximum amount of time a worker can work per week is 48 hours.
Work includes travelling as part of the job, working lunches and job-related training.
Working time does not include travelling between home and work, lunch breaks, evening classes or day-release courses.
Opt-Outs
A worker may agree to work more than 48 hours a week. He does this by signing an opt-out agreement which can be cancelled at any time. The agreement must state how much notice is needed to cancel the agreement, which can be up to three months but a minimum of seven days.
How is the average weekly working time calculated?
The number of hours worked each week should be averaged out over 17 weeks or however long a worker has been working for their employer if this is less than 17 weeks. This period of time is called the ‘reference period’. The hours per week is simply averaged out over this time.
Remember not to include paid annual leave, maternity leave, or sick pay in the calculations.
What should an employer do about a worker with a second job?
If a worker is known to have a second job, an employer should agree an opt-out with the worker if the total time worked is in excess of 48 hours a week.
More generally, employers may wish to make an enquiry of their workforce about any additional employment. However, if a worker does not tell an employer about other employment and the employer has no reason to suspect that the worker has another job, it is extremely unlikely that the employer would be found not to have complied.
Working at Night
A night worker is someone who normally works at least three hours at night. Night time is between 11pm and 6am, although workers and employers may agree to vary this.
Night workers should not work more than eight hours daily on average, not including overtime.
Special hazards - Where a night worker’s work involves special hazards or heavy physical or mental strain, there is an absolute limit of eight hours on the worker’s working time each day – this is not an average.
Work will involve a special hazard if it is identified:
- by agreement between an employer and workers in a collective agreement or workforce agreement; or
- as posing a significant risk by a risk assessment which an employer has conducted under the Management of Health and Safety at Work Regulations 1992.
Health Assessments for Night Workers - If you are an employer you must offer night workers a free health assessment before they start working and then annually whilst working.
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.
New and expectant mothers should be given special consideration.
Special consideration should be given to young workers’’ suitability for night work, taking account of their physique, maturity and experience.
How employers should assess workers’ health? - As an employer it is suggested you take two steps to be sure workers are fit to work nights.
- You ask workers to fill in a questionnaire which asks specific questions about their health which are relevant to the type of night work they will be doing.
- If you are not certain they are fit for night work following the questionnaire results, you ask them to have a medical examination.
Health assessments must be offered before someone starts working nights. They should then be repeated on a regular basis afterwards.
What to do if a worker is unfit for night work? - If a qualified health professional advises that a night worker is suffering from health problems caused by or made worse by working at night, the worker has a right to be transferred, if possible, to suitable day work.
Daily Rest - A worker is entitled to a rest period of 11 uninterrupted hours between each working day.
Weekly Rest - A worker is entitled to one whole day off a week. Days off can be averaged over a two-week period, meaning workers can take two days off a fortnight. Days off are taken in addition to paid annual leave.
Special Rules for Young Workers
A young worker is someone who is above the minimum school leaving age but under 18.
Daily rest - A young worker is entitled to 12 uninterrupted hours in each 24-hour period in which they work. The rest may be interrupted if periods of work are split up over the day or do not last long.
A young worker’s entitlement to daily rest can be reduced or excluded in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within 3 weeks.
Weekly rest - Young workers are entitled to two days off each week. This cannot be averaged over a two-week period.
If the nature of the job makes it unavoidable, a young worker’s weekly time off can be reduced to 36 hours.
Rest Breaks at Work
If a worker is required to work for more than six hours at a stretch, he or she is entitled to a rest break of 20 minutes.
The break should be taken during the six-hour period and not at the beginning or end of it. The exact time the breaks are taken is up to the employer to decide.
Special Rules for Young Workers
Different rules apply to young workers. If a young worker is required to work for more than four and a half hours at a stretch, he or she is entitled to a rest break of 30 minutes.
A young worker’s entitlement to rest breaks can be changed or excluded only in exceptional circumstances.
If a young worker is working for more than one employer, the time he or she is working for each one should be added together to see if they are entitled to a rest break.
A young worker’s entitlement to breaks can be changed or not taken in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within 3 weeks.
Exceptions to the Working time regulations
There are four classes of exceptions where some of the rules may not apply.
1) Agreements
Employers and workers can agree that the night work limits, rights to rest periods and rest breaks may be varied, with the workers receiving "compensatory rest". They may also agree to extend the reference period for the working time limits up to 52 weeks.
These agreements can be made by ‘‘collective agreement’’ (between the employer and an independent trade union) or a ‘‘workforce agreement’’. If a worker has any part of their conditions determined by a collective agreement they can not be subject to a workforce agreement.
A workforce agreement is made with elected representatives of the workforce in most cases.
A workforce agreement can apply to the whole workforce or to a group of workers. To be valid, a workforce agreement must:
- be in writing;
- have been circulated in draft to all workers to whom it applies together with the guidance to assist their understanding of it;
- be signed before it comes into effect either; - by all the representatives of the members of the workforce or group of workers; or
- if there are 20 workers or fewer employed by a company, either by all representatives of a workforce or by a majority of the workforce;
- have effect for no more than five years.
2) Special circumstances
The night work limits (including the limit for special hazards), rights to rest periods and rest breaks do not apply where:
- A worker works far away from where he or she lives and wants to work longer hours over fewer days to complete a task more quickly. Or he or she constantly has to work in different places making it difficult to work to a set pattern.
- The work involves security or surveillance to protect property or individuals.
- The job requires round-the-clock staffing such as hospitals, residential institutions, prisons, media production companies, public utilities or industries where work cannot be interrupted.
- There are busy peak periods, such as may apply seasonally in agriculture, retail, tourism and postal services.
- An emergency occurs or something unusual or unforeseen happens. In these cases, the reference period for the weekly working time limit is extended from 17 to 26 weeks. In addition workers are entitled to "compensatory rest".
What is compensatory rest?
"Compensatory rest" is a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed.
The regulations give all workers a right to 90 hours of rest in a week. This is the total of your entitlement to daily and weekly rest periods. The exceptions allow you to take rest in a different pattern to that set out in the regulations.
The principle is that everyone gets his or her entitlement of 90 hours rest a week on average, although some rest may come slightly later than normal.
3) Unmeasured working time
The regulations, apart from the entitlement to paid annual leave, do not apply if a worker can decide how long he or she works.
A test, set out in the regulations, states that a worker falls into this category if "the duration of his working time is not measured or predetermined, or can be determined by the worker himself".
An employer needs to consider whether a worker passes this test. Workers such as senior managers, who can decide when to do their work, and how long they work, are likely to pass the test. Those without this freedom to choose are not.
4) Partly unmeasured working time
There is an exception for workers who have an element of their working time pre-determined, but otherwise decide how long they actually work.
Here is the test:
"the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work [in addition to that which is measured or pre-determined] the duration of which is not measured or pre-determined or can be determined by the worker himself".
Any time spent on such additional work will not count as working time towards the weekly working time or night work limits. Simply put, additional hours which the worker chooses to do without being required to by his employer do not count as working time; therefore, this exception is restricted to those that have the capacity to chose how long they work. The key factor for this exception is worker choice without detriment.
Some or none of a worker’s working time may meet the test. Any working time that does meet it will not count towards the 48-hour weekly working time limit or the night work limits.
This exception does not apply to:
- working time which is hourly paid;
- prescribed hours of work;
- situations where the worker works under close supervision;
- any time where a worker is expressly required to work, for example attendance of meetings;
- any time a worker is implicitly required to work, for example because of the loading or requirements of the job or because of possible detriment if the worker refuses.
Redress
If you are a worker and you feel you are not receiving your entitlements, we suggest 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.
- If you cannot resolve the matter, you can make a claim at an employment tribunal.
- If you want to make a claim under the regulations, the Advisory, Conciliation and Arbitration Service (ACAS) will 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 conciliators 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 who have experience of dealing with work-related problems.
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