Working Time

Aims of the policy

The policy covers regulations related to the the EC Working Time Directive, which was introduced as a health and safety provision under Article 100 of the Treaty of Rome by qualified majority voting. Subsequently, the Working Time Regulations came into force in the UK on 1 October 1998.

The Working Time Regulations were introduced in order to implement the EC Working Time Directive which lays down minimum conditions relating to weekly working time, rest entitlements and annual leave, and makes special provision for working hours and health assessments in relation to night workers.

Who is it for?

The entitlements and limits contained in the Working Time Regulations apply to ‘workers’. The definition of ‘worker’ is widely drafted and includes, but is not limited to, individuals employed under a contract of employment. It also includes a wide range of individuals who provide personal services under a contract, including many casual, freelance and self-employed workers.

Certain workers are specifically excluded from the Working Time Regulations. The armed forces, the police and the emergency services are outside the scope of the regulations in certain circumstances. Young workers employed in these areas are, however, covered by the young workers provisions of the Working Time Regulations.

Essential elements

Working time limits

Working time in relation to a worker means any period during which he or she is working, is at the employer’s disposal and is carrying out activities or duties. This includes any period during which an employee is receiving relevant training and any additional period under a relevant agreement (ie a collective or workforce agreement). For example, working time includes working lunches and time spent travelling as part of a job. It would not, however, include routine travel between home and work.

In 2000, the European Court of Justice considered the status of ‘on-call’ time. It indicated that ‘on-call’ time would be ‘working time’ when a worker is required to be at his place of work. When a worker is permitted to be away from the workplace when ‘on-call’ and accordingly free to pursue leisure activities, on-call time is not ‘working time’.

The number of hours worked each week should be averaged over 17 weeks. This period of time is called the ‘reference period’. Workers cannot be forced to work for more than 48 hours (including overtime) in each seven-day period of a reference period. Employers should, therefore, include a policy statement on working time in workers’ contracts or written statements of terms and conditions. The policy statement should make it clear that workers must not exceed the 48-hour limit.

A worker may choose to opt out of the 48-hour week. Opt-out agreements must be in writing and they must be entered into on an individual basis; it is not possible to disapply the 48-hour limit by means of a collective or workforce agreement. Employers must keep a record of who has agreed to work longer hours. Opt-out agreements can relate to a specified period or apply indefinitely. They may also be terminated by the worker on not less than seven days’ notice in writing to the employer.

Rest entitlements

The Working Time Regulations provide for:

A daily rest period of not less than 11 consecutive hours in each 24-hour period (12 hours for young workers).
An uninterrupted rest period of not less than 24 hours in each seven-day period or two uninterrupted weekly rest periods of 24 hours each in every 14-day period (48 hours in every seven-day period for young workers).
A rest period of at least 20 minutes where the working day is more than six hours (or 30 minutes after 4.5 hours for younger workers). Workers are entitled to take these breaks away from their workstations.
Adequate rest breaks where the pattern of work is such as to put the worker’s health and safety at risk, in particular because the work is monotonous or the work rate predetermined.

Annual leave

Employees have a right to four weeks’ paid holiday in each leave year. Note this is not in addition to bank holidays. A worker is entitled to a week’s pay in respect of each week of leave.

If an employer denies a worker the entitlement to holidays, or imposes a detriment on a worker for asserting it, the worker has the right to complain to a tribunal.

The Working Time Regulations also provide that a worker has the right to

be paid the minimum holiday entitlement; and
to receive a payment in lieu of unused annual leave on the termination of his or her employment.

Night work

A ‘night worker’ is anyone who works at least three hours of his/her regular working time during night time (ie between 11pm and 6am if there is no agreement stating otherwise).

Night workers must be given the opportunity of a free health assessment and night work must not exceed an average of eight hours in 24 hours, or eight hours in any one period of 24 hours if the work is ‘hazardous’.

Consequences of not complying with Working Time Regulations

It is an offence for an employer not to comply with the Working Time Regulations and may result in the employer facing an action in the magistrate’s court, where the fine could be a maximum of £5,000 or a potentially unlimited fine if the case is heard in the Crown Court. The Health and Safety Executive acts as the enforcement agency.

An employee may make an application to an employment tribunal for compensation if he/she incurs loss as a result of the employer’s failure to comply with the Working Time Regulations.

It will be automatically unfair to dismiss an employee who refuses to opt out of his/her rights under the Working Time Regulations.

The Working Time Regulations also contain provisions which protect workers subjected to any detriment by their employer either because the worker has insisted on his rights under the Working Time Regulations or has refused to forego a right provided to him by the Working Time Regulations. This will, for example, protect a worker from facing any detriment for his refusal to sign an agreement to opt out of any of the Working Time Regulations where this is possible.

Key legislation

Working Time Regulations 1998 SI 1998/1833

Working Time (Amendment) Regulations 2003

EC Working Time Directive (NO.93/104)

EC Young Workers Directive 9NO.94/33)

Useful web links

Acas

Department of Trade & Industry