Working Time Regulations - The Essentials

1024 x 700 px Blog Image 29

The Working Time Regulations 1998 (WTR) is the piece of legislation which applies the EU Working Time Directive to the UK. This law limits the amount of time an employee is allowed to work each week and was amended in 2007 by the Working Time (Amendment) Regulations 2007.

These regulations were implemented to protect the health and wellbeing of employees from the negative effects of overwork and burnout. They achieve this by setting rules which govern many of the important aspects of an employment relationship.

The WTR protects workers from being offered contracts with less than certain minimal terms and from working for too long or in unsafe conditions. Set out below are the main protections afforded by the WTR and what these mean for employers.

The maximum number of hours an employee can work per week

Full-time employees and workers must not work more than 48 hours per week on average. This does not mean that workers cannot work more than 48 hours in any given week. The WTR provides for a 17-week reference period to use when calculating average working hours. A full-time worker could work 60 hours in a single week without falling foul of the WTR so long as this does not, during the 16 weeks before or after that week, put their average hours over 48.

There are a few exceptions to the 17-week reference period (such as junior doctors or offshore workers), but most employees and workers are tracked on a 17-week basis.

Unless the type of work being carried out has specific exceptions or is covered by its own working time laws (like mobile air transport roles, lorry/bus drivers, etc.) this limit applies to all workers and employees. However, it is possible for employees to opt out of this maximum limit.

Opt-out agreements

Unlike the rest of the WTR provisions, employees may choose to opt out of the 48 hours per week limit. Doing this must be voluntary and must be set out in writing and should be separate from the employment contract. An opt-out clause inserted into an employment contract, which purports to be effective by virtue of the employment contract being signed, is at risk of being deemed unenforceable and therefore ineffective.

The opt-out agreement must be specific to the individual employee or worker and cannot be imposed on the entire workforce. Additionally, should an individual refuse to sign an opt-out agreement, they must not be discriminated against, disadvantaged or disciplined. Workers and employees are also entitled to change their minds and so can cancel their opt-out at any time. The amount of notice required will depend on the opt-out agreement. By default, 7 days’ notice is required but an opt-out agreement can extend the required notice to no more than 3 months.

Breaks

Employees and workers (unless their roles are regulated by different working time rules) are entitled to the follow periods of rest:

  • A minimum 20-minute rest break if they work more than six hours in a single shift;
  • 11 consecutive hours of rest between working days; and
  • Either 24 consecutive hours of rest every 7 working days or 48 hours every 14 working days.

Working any more than 6 hours in a single shift doesn’t entitle a worker to any additional breaks, but employers should consider it (such as an hour for lunch, which would be inclusive of the legally required 20 minutes). Employers also need to consider whether further breaks should be given for specific health and safety reasons if, for example, intense manual labour is required throughout the day.

It's also possible that a specific individual could require extra breaks due to a disability. If an employee or workers asks for this, and it’s a ‘reasonable adjustment’, the employer must agree to it.

Annual leave entitlement

In addition to breaks and weekly working limits, the WTR also sets the number of days’ holiday that employees and workers can enjoy each year. In 2007, the holiday entitlement was increased from 4 weeks to 5.6 weeks. This legal entitlement is commonly expressed as 28 days’ holiday in each year, but that’s only the case where the role is full time (i.e. 5 days per week). An employee who only works 2 days per week is only entitled to 11.2 days’ holiday per year (which is still 5.6 weeks and therefore meets the legal requirement).

However, it’s important to note that this entitlement is limited to 28 days. An employee who works 6 days per week isn’t entitled to 33.6 days, just the usual 28.

Employers might decide to offer employees and workers more than the legal minimum. If they do so, they must do so for both full-time and part-time staff. Part-time workers cannot be treated less favourably than full-time workers so, if their full-time counterparts are being given more paid holiday than the legal minimum, part-time workers must be given the same pro-rata amount of additional paid holiday.

Night work

Due to the nature of night work and the increased risks involved in working at night, the WTR limits the hours that can be worked. Night workers must not work, on average, more than 8 hours in any 24-hour period. Once again, this average is calculated over a 17-week period. However, where the employee carries out heavy physical activity or the work involves mental strain or special hazards, there is a hard limit of 8 hours per single shift that an employee is allowed to work.

The WTR states that the hours between 11pm and 6am are the ‘night hours’. However, a business can agree a different period with its workers so long as it is at least seven hours long and includes the five hours between midnight and 5am.

Employers must offer night workers health assessments (both before they become a night worker and regularly during their time as a night worker, as is reasonable in the circumstances) to protect their health, safety and wellbeing. The employee does not need to accept the assessment, but it must be offered.

Overtime and On Call

Employees only need to work overtime if it is specified in their contract of employment. That means if an employee has a contract of employment which specifies that they will work a 40-hour week but with no mention of overtime, even though the working time directive provides for a maximum of 48 hours, the employee does not have to work any overtime.

Time spent by an employee ‘on call’ (which is when an employee is expected to be available for work outside of their regular working hours) may count towards working time. Whether it counts towards working time will depend on the level of control the employer has over the employee’s activities, location and time. As such, it’s quite fact specific.

If time spent on call is deemed as working time, it must be considered when reviewing average working hours and rest breaks. Payment is also required for any on call working time and must be, at least, the national minimum wage.

Record Keeping

Employers are obliged to keep records to show the average weekly working time limits are being adhered to and these records must be kept for at least 2 years. There is not a requirement to keep records of every single employee’s daily working hours; therefore, carrying out occasional checks on employees who work “standard” hours and are unlikely to reach the 48 hour threshold is likely to be sufficient. However, employers do still need to keep some form of records proving that employees aren’t working more than the 48-hour weekly maximum, aren’t breaking night worker limits, are offering night workers regular health assessments, etc.

It is good practice to more actively monitor employees who are at or close to the 48-hour threshold to ensure they do not work too many hours.

Sanctions for employers breaking the rules

If an employer doesn’t follow the law, the Health and Safety Executive or local authority inspectors can penalise the employer with a fine and then serve improvement or prohibition notices on them. If an employer fails to comply with these notices they can face an unlimited fine and the company’s director could be imprisoned for up to two years. Repeated violations can lead to criminal charges.

Additionally, if an employee was to suffer a detriment as a result of their employer not following the WTR (or even from raising a concern about working time to the employer), an employment tribunal claim can be made at which the tribunal could make a compensation order against the employer.

Employers also need to consider the reputational damage they would suffer if they were found guilty of breaching the WTR.

Got questions?

If you have any questions about the Working Time Regulations, or would like help drafting an employment contract which is legally compliant, don’t hesitate to reach out to MBM Commercial’s Employment Team.
Contact Us Today

You must enable javascript to view this website