The Working Time Regulations 1998 (WTR) introduced rules relating to working hours and rest breaks, as well as other issues. This short note is only meant as the most basic guide and does not cover any of the many exemptions. It should not be used a legal advice as it is simply too short to deal with what are very complex rules. Corners have been cut!
Who is protected by WTR?
The WTR protect “workers”, which is a pretty wide definition and includes all employees and other similar arrangements where there is a requirement for personal services such as temporary workers and freelancers. It does not however protect people who are genuinely self-employed. There are many examples where it will not be entirely clear if someone is or is not covered. In such circumstances, please do give one of our employment solicitors a call and we will be glad to assist.
What is “working time”?
In summary, (bearing in mind there are many exceptions), working time:
- is any period during which the worker is working, carrying out his duties, and at the employer’s disposal. This includes any period during which the worker is receiving training; and also any time which is agreed to be “working time” (for instance in negotiation with a union). If you are on call, most activities undertaken whilst on call are included.
- does not normally cover rest breaks such as lunch and tea breaks or travel to work (except in certain special circumstances). Time spent “on call” away from the workplace is not included. Work-related social events are not included and neither is any unpaid voluntary overtime;
The 48-hour limit
Where this limit applies, a worker’s average working time (including all overtime and time spent working for other parties) must not exceed 48 hours per week. Failure to comply is an offence punishable with a potentially unlimited fine.
Workers can still work more than 48 hours in any one week provided that the overall weekly average measured over the appropriate reference period is 48 hours or less.
The reference period is normally a rolling period consisting of the last 17 weeks.
Young workers (those over compulsory school age but under 18) may not work more than 8 hours in any one day and 40 hours in any one week (Monday to Sunday).
Penalties for non-compliance
Failure to take reasonable steps to comply with the limits on working time or the record-keeping requirements will render the employer guilty of an offence (regulation 29(1)), and liable to prosecution and a fine which is potentially unlimited.
Opting out of the 48-hour week
An employee may opt out of the 48 hour week with a written “opt-out agreement” but, even if a worker has opted out, he cannot be required to work in way which puts his or others’ health and safety at risk.
Employers must keep records covering the last two years showing which workers have opted out.
A night worker is any person who works for at least three hours during “night time” on the majority of their shifts, or does so “as a normal course”. Case law suggests that anyone who works nights on one in three shifts or more will be a night worker. Someone who works nights only occasionally, on an ad hoc basis, or whilst on call will not normally be a night worker. However the position is not clear if an employee works nights less than one in three! Presumably if it was just one in 20 this would not make them a night worker, but if this is “as a normal course” they could be.
What is “night time”?
Night time is the period between 23.00 and 06.00. Employers can agree another definition of night time hours but it must last at least seven hours and include the hours between midnight and 05.00 (so, from 22.00 to 05.00, or from midnight to 07.00).
What are the night work limits?
These are the rules on night work:
- An eight hour average limit on a night worker’s normal hours of work per day; and
- An eight hour actual limit for each day in the case of work undertaken by a night worker (not necessarily during night time) involving special hazards or heavy physical or mental strain (regulation 6(7)).
- Employers must ensure there are no young workers (over compulsory school age but under 18) work between 10pm and 6am.
Night workers: health checks
All employers must offer a free health assessment to any worker who is, or is intended to become, a night worker at regular intervals. If a GP has advised that a worker is suffering from health problems connected with night work the night worker is entitled to be transferred, wherever possible, to other suitable work during the day time.
Rest periods and rest breaks
The WTR allow workers all of the following:
- A daily rest period of 11 hours’ uninterrupted rest per day.
- A weekly rest period of 24 hours’ uninterrupted rest per week (or at the employer’s choice, 48 hours per fortnight).
- A rest break of 20 minutes when a day’s working time is more than six hours.
The above entitlements do not apply to a number of workers including for instance workers with unmeasured time, such as some senior managers.
Young workers have greater entitlements to rest breaks than adult workers:
- Daily rest of 12 consecutive hours.
- A weekly rest period of 48 hours.
- A rest break of 30 minutes where daily working time is more than four and a half hours.
Employers must ensure that workers can take their rest periods or breaks but are not required to force workers to take them. Legal action can only be taken if the workers are prevented by the employer from exercising their rights or are victimised for doing so.
Senior employees and unmeasured working time
Senior employees such as managing executives who have control over the hours they work are exempted from certain provisions:
- The limits on average weekly working time.
- The limits on the duration of night work.
- The right to daily and weekly rest breaks and periods.
- The need for their employers to keep records of these workers’ working time.
This exclusion does not include middle managers, but only senior employees who have real control over their own time.
Enforcement and penalties
- Employers who flout the rules can be subject to a fine of up to the statutory maximum (on summary conviction) or a potentially unlimited fine (on indictment).
- The HSE can issue “Improvement” or “prohibition” notices issued by HSE or local authority inspectors, with potentially unlimited fines and up to two years’ imprisonment for directors on conviction on indictment (or a fine up to the statutory maximum and up to three months’ in prison on summary conviction) if such a notice is not complied with.