Working Time Regulations

Q What is the maximum number of hours that an adult can work?

A Under the Working Time Regulations 1998, adults have the legal right to refuse to work more than an average of 48 hours a week, including overtime, calculated over a reference period of 17 consecutive weeks.

The 17-week period may be increased to 26 weeks for employees whose work keeps them away from home for long periods, including those employed in offshore work, and for some other groups, such as security guards, postal workers, agricultural staff and refuse collection workers.

The 17-week period may also be extended to up to 52 weeks under the terms of a collective or workforce agreement that applies to particular workers or groups of workers.

Q Can an adult worker decide to work more than the limit imposed by the Working Time Regulations 1998?

A An adult may agree to work more than an average of 48 hours a week so long as they do so voluntarily and in writing, without any pressure from the employer. An opt-out agreement may either relate to a specific period, or apply indefinitely. It may include an agreed period of notice up to a maximum of three months. However, if there is no such notice agreement, the worker may cancel the opt-out agreement by giving just seven days’ notice. A worker cannot be dismissed or subjected to detriment for refusing to sign an agreement opting out of the 48-hour week. Employers must keep an up-to-date list of workers who have opted out of the maximum working week.

Q What changes to the working time opt-out provisions are likely?

A In September 2004, the European Commission adopted a proposal for amending the Working Time Directive. Under the proposed revisions, a worker would not be able to give their agreement to opt out of the maximum working week at the signature of their employment contract or during any probationary period. In addition, the maximum number of hours that staff could work in any week would be limited to 65, and employers would be required to keep up-to-date records of the hours actually worked by each opted-out worker. Any agreement would be valid for a maximum of one year, but would be renewable.

Q Are any changes to working time reference periods planned?

A Under the European Commission’s proposals, the standard reference period for the calculation of the average working week would remain unchanged. However, subject to compliance with general health and safety principles and consultation with recognised independent trade unions, member states would have the option of extending the reference period to a year. In no circumstances, however, could the reference period be longer than the duration of a worker’s contract.

Q What counts as ‘working time’ for the purposes of the Working Time Regulations 1998?

A ‘Working time’ for the purposes of the Working Time Regulations 1998 is any period when the worker is working, at the employer’s disposal and carrying out their duties. This includes periods when the worker is undergoing training directly related to their work, travel where it is part of the job – for example, for a travelling salesperson, business lunches and time spent abroad working for a UK employer.

It does not include routine travel between the worker’s home and work, rest and lunch breaks when no work is done, time spent travelling outside normal working hours, or time spent on non-job-related training or day-release courses.

The European Court of Justice has held that time spent on-call at work constitutes working time for the purposes of the Working Time Directive, even where the person concerned is permitted to rest when their services are not required.

Q What proposals are there to amend the Working Time Directive with regard to time spent on-call?

A Under the European Commission’s proposals for amending the Working Time Directive, two new definitions of ‘on-call time’ and ‘inactive part of on-call time’ are to be added to the existing definitions of ‘working time’ and ‘rest period’.

For these purposes, on-call time would be time during which the worker was obliged to be at the workplace so they can be called upon to carry out their duties. The inactive part of on-call time would be when the worker was still on- call, but not actually carrying out their duties. The inactive part of on-call time would not be classified as working time, unless under national law or by collective agreement it was deemed to be so.

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