Working time and the law

Workers in the UK have a legal right to a minimum number of holidays each year and rest breaks. The legislations also specify the maximum number of hours they can work, unless an opt-out has been agreed.

Working Time Regulations 1998 and 2002

The definition of ‘worker’ in these regulations is much wider than that of ‘employee’ and includes temporary and casual workers (see article 62). The regulations are complicated, so it will be for the tribunals and courts to determine the way in which they must be applied. As a result, this chapter can only set out general guidance so Randstad recommends that you seek professional advice if you have specific questions. The regulations cover the maximum average working week, rest periods and breaks, paid annual leave and night work. There are specific regulations for young workers – defined as those over the minimum school leaving age but under 18. The school leaving age in England is 17 at the time of writing, rising to 18 in September 2015, although this might be spent on an apprenticeship in a workplace rather than in an educational establishment. In Wales, Scotland and Northern Ireland the school leaving age remains at 16. Certain workers whose job requires them to work unusual patterns, e.g. doctors, may be excluded from the rest periods, breaks and night work provisions, although the average working hours still apply. Employers may vary some of the restrictions by:

• collective agreements with recognised independent trade unions

• workforce agreements with elected worker representatives where there is no recognised trade union.

The 48-hour maximum working week

Other than for the exceptions stated in the regulations and its amendments (e.g. where working time isn’t measured or where it is determined by the individual – when managing executives for instance) employers must ensure their employees work a maximum average working time of 48 hours over seven days, normally worked out over a reference period of 17 weeks, but variable by a valid agreement. In the case of organisations which require 24-hour staffing, e.g. care homes, the reference period is 26 weeks. For new workers, the reference period will be that worked to date. For young workers there is a maximum of eight hours a day and a 40-hour working week.

Working in excess of the limit

With the exception of young workers, any worker can agree to work in excess of the limit through a valid agreement – known as an ‘opt-out’. This agreement can be withdrawn by the worker by giving between one week’s and three months’ notice, depending on the agreement reached with their employer. Workers cannot be compelled to opt out, it cannot be a workforce-wide agreement and workers who refuse to opt out should not be penalised.

Record keeping

Employers must keep records showing all workers who have agreed to work in excess of 48 hours. These records include copies of the agreements to opt out. Employers must be able to demonstrate that they comply with the regulations on working hours, but there is no prescribed format for these records. All records need to be kept for two years after the employee last worked in excess of 48 hours in a week.

Working time

This is defined as when a worker is “working at his or her employer’s disposal and carrying out his or her activity or duties”. This would not include a normal lunch or other break, although a working lunch could be considered working time. ‘On-call’ time, which is spent away from work when the worker is free to pursue leisure activities, is not counted as working time but time spent away from the office working is classed as working time. For example, teachers who do their official working day at school and then supplement that time by marking at home would be considered to be working when they are at home as they are not free to pursue leisure activities, whereas a press officer who is on- call in case they need to answer journalists’ queries would not be counted as working unless they have to take a call.

Whether their employer is breaching the regulations would depend on whether the individual teacher has signed an opt-out and the average number of hours worked over the 17-week qualifying period. But if the worker is at the employer’s location and cannot do anything else but be available for work this counts as working time – even when the employee is asleep. An EAT decision in May 2015 indicates that union and health and safety representatives who are called into the office for meetings are considered to be working, even though these duties are not under the employer’s specific control, as they are for the wider benefit of the workforce.

Working time can also be defined by agreement between workers and employers.

All the time spent working by an individual worker is added together – for example where the worker has more than one job, they either need to reduce their combined hours to the 48-hour maximum or sign an opt-out with both employers.

The average working time over the reference period is calculated by excluding any time off due to annual leave, sick leave, maternity leave or times when the worker has agreed to work over the limit.

Rest periods

The regulations allow for most workers to have a daily rest of 11 consecutive hours in every 24-hour period worked – for young workers, 12 consecutive hours in every 24. Mobile workers (e.g. bus drivers) are entitled to ‘adequate’ rest breaks to ensure they are not likely to injure anyone through tiredness but the set periods do not apply (First Hampshire & Dorset Ltd v Feist and others).

In addition, there is an entitlement to an uninterrupted rest period of 24 hours in every seven days, averaged over two weeks; for young workers, two days each week, with 36 hours being allowed in exceptional circumstances. Record keeping is not required for this element.

Rest breaks

Most workers are entitled to 20 minutes’ break when working more than six hours; for young workers, 30 minutes if working more than 4.5 hours. These breaks must be taken during the working time, not at the beginning or end, and they need not be paid. A worker is only entitled to one rest break once he or she has worked for six hours, he or she is not entitled to another if he or she works for 12 hours. If the rest break cannot be taken at the proper time, then a compensatory rest break must be offered – it’s not enough for the employer to say that the employee can rest between shifts.

Where work is particularly monotonous and/or there are consequent health and safety risks, workers are entitled to more regular, ‘adequate’ rest breaks.

The Employment Appeal Tribunal has confirmed that a worker can only bring a claim for breach of the rest break provisions where an employer has refused to allow the worker to exercise their right to rest. So an employee whose working patterns do not allow the daily or weekly rest breaks specified by the regulations must attempt to exercise his or her right to a rest break. If they do not they cannot establish a claim because there is no refusal by the employer.

Night workers

Night workers are those who work at least three hours in the night work period (between 11pm and 7am). They must do that as a normal course and this would include those on a regular rotating shift pattern.

Periods of night work, shifts for example, must not be more than eight hours in every 24-hour period, averaged over 17 weeks – or such period agreed in a collective or workforce agreement. If the work is particularly hazardous then the averaging or ‘reference period’ does not apply and the maximum is eight hours in every 24.

For this purpose, normal working hours do not include overtime, other than that guaranteed. The employer must keep records.

Night workers are entitled to a free health assessment before starting night work for the first time and, if they are already night workers, to regular repeat assessments at least annually. The employer must keep records.

When a medical professional declares that a worker’s assessment indicates that he or she is unfit for night work, then that worker has the right to transfer to other work not done at night.