Employers must take care of the health and safety of all their workers; this includes protecting them from overworking and consistently long hours.
The main legislation governing working time is the Working Time Regulations 1998 (WTR), which were originally introduced to implement the European Working Time Directive in the UK. Even though the UK is no longer in the EU, the regulations remain in force (with some amendments) in the UK.
The WTR limits the time a person is allowed to work and provides for rest entitlements and paid annual leave. They apply to both employees and workers. Anyone who works under a contract to personally perform work or services for another party who is not a client or customer is defined as a worker. As a result, temporary workers, agency workers and freelancers are also covered by the WTR.
In this guide, we look at the main details of the WTR, the exceptions to the rules and the consequences of not complying with the legislation.
Employer’s Obligations Under the WTR
An employer’s principal duties under the WTR include the following:
A 48-Hour Week
The WTR states that an employer must take all reasonable steps to ensure that a worker works no more than 48 hours a week over a reference period unless they opt out of the legislation (see below) or do a job exempted under the law.
Businesses normally average the reference period over 17 weeks. As a result, an employee can work over the maximum limit of 48 hours in one week so long as the average over 17 weeks is less than 48 hours a week.
Younger workers who have reached the compulsory school leaving age but are under 18 years-old must not work more than 8 hours a day or 40 hours per week.
Night-Workers
A night worker is an individual who usually works at least three hours a day during ‘night time,’ which by law is the period between 11 pm and 6 am.
Employers are responsible for ensuring that night workers do not work more than 8 hours in a 24-hour period on average. A night worker’s average hours is calculated over one of the following reference periods:
- rolling periods of 17 weeks
- successive 17-week periods, if it is agreed and documented in a relevant agreement
- if the worker has worked for less than 17 weeks, the period that has elapsed since they started work.
Employers must also make sure that night workers do not carry out work involving special hazards or heavy physical or mental strain for more than 8 hours a day. Furthermore, they should offer workers a free health assessment before they become a night worker.
Rest Breaks and Periods
As a general rule, workers are entitled to the following minimum rest breaks and rest periods:
- an uninterrupted rest break of at least 20 minutes when a worker is working more than 6 hours a day
- a daily uninterrupted rest period of 11 hours between working days
- either an uninterrupted weekly rest period of 24 hours each week or an uninterrupted 48-hour rest period each fortnight.
Employers must allow workers to take their breaks and rest periods; however, there is no obligation to ensure workers take them.
There are special rules on rest for night workers and young workers. In addition, where work is monotonous and may put the health and safety of the worker at risk, the employer must give workers adequate rest breaks. This may involve allowing further breaks on top of the rest breaks set out in the legislation.
Some workers in certain sectors and domestic workers are exempt from this right.
Paid Holiday
Workers are entitled to 5.6 weeks of paid annual leave in each leave year. A part-time worker has the right to a pro-rata amount of paid holiday dependent on the number of days worked each week.
As of 1 April 2024, there are special rules for irregular hour and part-year workers, under which holiday entitlement must be paid at a rate of 12.07 % of hours worked in each pay period.
Carrying Over Holiday
The law provides that four weeks’ leave can only be used in the leave year to which it relates, otherwise, it will be lost. However, 1.6 weeks of leave may be carried forward into the next leave year if that is provided for in the contract of employment or in a collective agreement.
Defining Working Time
Working time under the WTR is any period during which the individual is working, is at the employer’s disposal, or is carrying out their activities, duties or training. It will include time spent being on call while at the workplace or travelling to visit a customer or client.
Being ‘on call’ away from the workplace, making the journey to and from work or attending work-related socials does not count towards ‘working time.’
Exemptions
By law, because of the type of work they do, some jobs are exempt from some of the rules in the WTF and can have different arrangements for working hours and rest in some circumstances.
Some of the roles that can have different arrangements include:
- those in jobs that need ‘continuity of service or production’ such as jobs in the media, hospitals and transport
- jobs with seasonal rush such as tourism and agriculture
- security guards, caretakers and similar roles
- shift workers who change their shift pattern
- those who regularly travel between different workplaces, such as travelling salespeople.
Furthermore, the working time rules do not apply to managing and senior executives and those who make organisational decisions or self-employed people. This is because they can control their own working time.
Opting Out of the 48-Hour Week
Most workers over 18 can decide to work more than an average of 48 hours a week by signing an ‘opt-out agreement’.
This agreement should be in writing and entered into voluntarily by the worker; you must not pressurise them to sign it or treat them unfavourably if they choose not to opt out.
Furthermore, an employee can change their mind about opting out and cancel an opt-out agreement. However, they should give their employer notice if they intend to do this.
Requirements Around Working Time Record Keeping
Under the WTR, employers are legally required to keep ‘adequate’ records of hours worked by individuals who have opted out of the working time rules. They must also keep records to demonstrate that the limits on average working time, night work and provision of health and safety assessments are being complied with in respect of each worker.
These records need to be kept for at least two years and should be accessible to employees on request.
However, employers do not have to keep a record of all daily working hours of their workers so long as they can show compliance with the WTR without doing so.
Sanctions for Non-Compliance with WTR
There is a broad range of penalties that can be imposed on a business for breaching the WTR. These include:
- a fine of up to the statutory maximum for summary convictions. In extreme cases, fines can potentially be unlimited if the case proceeds to indictment;
- improvement or prohibition notice issued by the Health and Safety Executive or a local authority. This carries with it the prospect of unlimited fines and up to two years imprisonment for directors if the situation is not addressed; or
- compensation for workers in an employment tribunal.
Potential Employment Tribunal Claims Related to WTR Breaches
Workers can bring a claim in an employment tribunal if their rights relating to working time, rest periods, holiday leave, and/or pay have been breached. If a claim succeeds, the tribunal will make a declaration and may award just and equitable compensation in the circumstances.
A worker can also bring a claim if they have suffered any detriment because they:
- declined to sign an opt-out agreement to forgo a right under the WTR
- refused to work longer than the maximum limits set out under the working time legislation
- did not agree to work when entitled to a rest period or
- have brought up a concern about their rights under the WTR.
A detriment means an individual is treated worse than before and/or when their situation is made worse. Examples of detriment might be bullying or harassment, turning down training requests for no good reason or being overlooked for promotion opportunities.
It is also automatically unfair to dismiss an employee for one of the examples of detriment listed above.
A worker can also report their employer to the Health and Safety Executive or a local authority (depending on the type of workplace) if they have breached the working time rules set out in the WTR.
How We Can Help
Understanding and complying with the law on working time is crucial to keeping your staff happy, healthy and safe, as well as safeguarding your company’s reputation.
Our experienced employment team can advise you on all aspects of the WTR. Call us today on 0300 303 2071 for more detailed advice on complying with the working time legislation or email us.
