Legal Q&A Working Time Regulations

Five million workers in the UK are clocking up nearly £5,000 in unpaid overtime every year, according to recent research by the TUC. The Working Time Regulations 1998 (WTR) give workers certain rights in relation to time spent working and time off work.

Q What rights do the regulations confer, and who is entitled to them?

A The WTR apply to all workers, and not just to employees. The wider definition of “worker” includes certain agency workers and self-employed contractors.

Workers have the right to a maximum 48-hour working week, as well as a minimum of 11 hours off in every 24-hour period (daily rest) and 24 hours off in every seven-day period (weekly rest) not including the period of daily rest. In addition, workers must be given a 20-minute break away from their workstation if they have worked for six hours or more (“rest breaks”).

Workers are currently entitled to a minimum of 24 days’ annual leave which will increase to 28 days in April 2009. They must be paid for any annual leave they were owed but had not taken when their employment terminated.

There are additional protections for night workers, and also for young workers under the age of 18.

Q What obligations do the WTR place on employers?

A Employers have a general duty to ensure that the workforce works appropriate hours with adequate rest. They must also keep records to show that the regulations are being complied with and take reasonable steps to ensure that the workforce is complying with the 48-hour maximum week. They must ensure that employees are not subject to any detriment on WTR grounds.

Q What happens if an employer doesn’t comply with the WTR?

A If an employer is in breach of the WTR, workers can refer claims to the Tribunal Service or the Health & Safety Executive (HSE). The HSE is responsible for the enforcement of the maximum weekly working time limit, night work limits, and health assessments for night work. Claims in relation to time off work, rest breaks or annual leave would be brought before an employment tribunal.

Q Can an employer opt out of the WTR?

A If there is a collective agreement in force (such as a union agreement), then employers and workers can agree to opt out of WTR provisions relating to the length of night work, provided workers are given compensatory rest periods. However, they can only opt out of the 48-hour working week by individual agreement.

Q Are there any times when rest breaks don’t apply?

A There are a number of special circumstances where entitlement to rest periods and breaks does not apply – for example, where the worker’s activities involve a need for continuity of service or production, or where there is a foreseeable surge of activity.

These exemptions apply in limited circumstances, and employers need to look very carefully at any situations where workers are not getting full rest. These exclusions can only be used if employers have thought long and hard about the alternatives.

The provisions relating to daily rest and weekly rest do not apply to shift workers when there is a change of shift and the worker cannot take the relevant rest period between finishing one shift and starting the next.

Q What counts as working time?

A Any period when a worker is working, at his employer’s disposal and carrying out their activities or duties counts as working time. Additionally, working time is defined as any period during which a worker is receiving relevant training, and any additional period which is to be treated as working time under a relevant agreement (such as a workforce or collective agreement).

Problems most commonly arise in relation to workers who work slightly unusual work patterns or who spend time on call, travelling or entertaining.

Q Are there any changes in the pipeline?

A The European Court of Justice (ECJ) will shortly rule on whether workers accrue holidays while off sick. The British courts have said no, but the early indications are that the ECJ will disagree with this. Watch this space for the practical implications of the ECJ decision.

James Crann, senior associate, McGrigors

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