UK: Working Time Regulations

Last Updated: 4 March 1999
WHAT ARE THE WORKING TIME REGULATIONS?

The Regulations were issued on 30 July 1998 and came into force on 1 October 1998. They are intended to implement two European Directives; the Working Time Directive and the Young Workers Directive. As the name implies, the Regulations are aimed at introducing minimum standards to protect workers against the health and safety risks of working excessive hours.

UPON WHOM DO THE REGULATIONS CONFER RIGHTS?

In a word, workers.

What does "worker" mean?

It does not just mean an employee. The Government has long been concerned about what it calls "spurious self-employment". Many businesses are anxious to avoid conferring employee status on those that work for them. The business may, for instance, want to avoid any possibility of unfair dismissal proceedings being brought against it. As self-employed workers do not (as yet) have access to the same range of rights and protections, businesses commonly devise complex (and the Government believes, artificial) contractual relationships in order to ensure that its workers are treated as being self-employed. Discrimination legislation has a broader scope and protects those who work under a contract "personally to execute any work or labour". This broader definition includes many people who would ordinarily be treated as being self-employed. The Government seems to want the Working Time Regulations to be broader than unfair dismissal protection but narrower than the protection against discrimination. So, the Regulations apply to those who:

"work under any ... contract ... whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual".

Whilst, in theory, it is possible to envisage a halfway-house between employees and professional service providers, in practice, developing a test is likely to be fiendishly difficult. In its Guidance, the DTI sets out a proposed test which has a certain eerie familiarity about it - it is the same "balance of factors" test presently used by employment tribunals to determine whether one is employed or self-employed for the purposes of unfair dismissal protection - and so is not particularly helpful.

WHAT RIGHTS ARE CONFERRED?

THE 48 HOUR WORKING WEEK

The most important of the new rights is the requirement that workers should not work more than an average of 48 hours in any 7 day period (the average is calculated, normally, using a 17 week period of assessment). The period of assessment may be modified by agreement with the workforce through a collective or workforce agreement (of which more below). The 48 hour limit includes overtime. The employer must take all reasonable steps to ensure that the limit is complied with.

What does "reasonable steps" mean?

As always, it depends. The matter is best approached by considering examples.

If you run an agency and supply temporary workers to client companies, you are nevertheless the "employer" for the purposes of the Regulations if you pay the workers directly. What steps can you take to ensure that your workers do not exceed the average? The first sensible step is to make it a term of the agreement with the client that the workers should not be required to work more than the permitted number of hours. You should also try to ensure that a record of the hours worked is authenticated by the worker.

The Regulations apply to part-time as well as full-time workers. Part-time workers often have more than one job. How will the 48 hour limit affect such workers? The 48 hour maximum applies to the aggregate of the worker's hours across all his part-time jobs. The DTI Guidance suggests that an employer should enquire whether the worker has other employment, and as to the hours that are being worked. If it looks likely that the 48 hour limit will be exceeded, the DTI suggests negotiating an opt-out (for which see below).

What counts as working time?

The clock starts ticking whenever a worker is:

  • working; and
  • at his employer's disposal; and
  • carrying out his activity or duties.

These factors are cumulative. It is not enough to satisfy one or two of them. They all have to be met. As a result, the DTI's Guidance suggests that time spent "on call" would not count as working time. Similarly, a lunch break is classed as a break and not work. Time spent travelling to and from work is, in the DTI's view, "unlikely to be working time". Time that would not ordinarily count as working time can nevertheless be treated as such if the employer and worker agree that it should be.

Opt-outs

Workers are free to agree to work more than 48 hours a week. However, a formal agreement in writing has to be in place. There is no reason why this agreement should not be incorporated into a standard contract of employment.

What if a worker changes his mind after he has signed an opt-out agreement?

The Regulations entitle him to change his mind. The agreement may be terminated on notice by the worker. If no provision is made in the agreement itself the worker need only give 7 days notice in writing. The agreement may provide for a longer period but it cannot exceed 3 months.

Where's the catch?

An employer can only rely on the opt-out if he meets certain conditions. The conditions relate to record-keeping. The employer must keep a record of:

  • those who have opted-out; and
  • any terms on which the worker agreed that the limit should not apply; and
  • the number of hours worked by the worker for the employer during each reference period since the opt-out. Time sheets or clock records should be sufficient to meet this requirement. Payroll records will also do provided they contain a record of the actual hours worked. Payroll records would probably not be sufficient, therefore, where the worker is engaged on annualised hours terms.

The employer must also allow Health and Safety Inspectors or Local Authority Environmental Health Officers to look at the records and provide them with any information that they may request about any particular worker.

NIGHT WORKERS

Special rules apply to night workers. They must not be required to work more than an average of 8 hours in any 24 hour period (again the average is calculated by considering a period of 17 weeks). If the work involves "special hazards or heavy physical or mental strain" the 8 hour limit is absolute.

Is there an opt-out?

Once again, the limits described above may be excluded by agreement. However, the opt-out has to be secured by way of a collective or workforce agreement.

WHAT ARE COLLECTIVE AND WORKFORCE AGREEMENTS?

A collective agreement is one reached between the employer and an independent trade union. A workforce agreement, on the other hand, is one reached between the employer and the workers employed by him or their representatives. The latter is a novel concept, a sort of non-union collective agreement. Its purpose (where the Regulations allow) is to avoid having to obtain individual agreement from every worker to the opt-out. If, however, workers have their terms and conditions wholly or partly determined by reference to a collective agreement, their opt-out has to be obtained by way of a collective rather than a workforce agreement.

An employer may make an agreement with the workforce as a whole, or with a particular group of workers (i.e. members of a workforce who all perform the same particular function, work at a particular workplace or belong to a particular department or unit). Where there are more than 20 workers affected, the agreement is signed on their behalf by elected workforce representatives. Where there are fewer than 20 workers, an agreement may either be made with their representatives or else with the employees directly. Provided the majority of them sign the workforce agreement, all are bound.

Who are these workforce representatives?

They are workers elected to represent their colleagues. It is up to the employer to decide how many there should be. It is up to the workforce to decide who they should be. The representative must be someone who will also be subject to the agreement. However, no one who meets that criterion may be unreasonably excluded from standing. It is not clear when the Government thinks that it would be reasonable to exclude them. Voting, so far as is reasonably practicable, should be secret.

Once I've secured an agreement does it matter if there is a turnover of staff?

New workers will be bound by the terms of any existing workforce agreement. However, the Regulations provide that agreements should have a maximum duration of 5 years. Thereafter, negotiations recommence.

RECORD-KEEPING

The Regulations require employers to "keep records which are adequate to show whether the [working time] limits ... are being complied with in the case of each worker employed by him in relation to whom they apply".

Adequate records?

The DTI's Guidance suggests that it is up to each employer to decide what is necessary. It is not envisaged that the employer will have to keep a running calculation of each worker's average working hours. Nor does the Government anticipate that employers will necessarily have to establish new record-keeping procedures. The Guidance suggests that employers' existing payroll records may well be sufficient. Where the payroll records the actual number of hours worked that would obviously be so. Many workers, of course, are engaged to work a standard number of hours a week. In their case, there will be no specific record of the number of hours actually worked. Whereas one might expect the Guidance to indicate a requirement for the employer to start keeping such records, it states instead that "it may be sufficient to meet the requirement by using management systems to ensure that the specified hours are kept". However, the means of monitoring must be "adequate to highlight instances of workers working in excess of the standard working hours".

Records should be retained for two years.

REST AND RELAXATION

The Regulations aim to ensure that workers get their fair share of r and r. Minimum rest periods are stipulated as described in the table below.

                           Minimum daily rest     Minimum weekly rest

  Workers older than 18    11 consecutive hours   An uninterrupted period of
    ("adult workers")                             24 hours in each 7 day period,
                                                  or (at the employer's option)
                                                  one uninterrupted period of
                                                  48 hours in each period of
                                                  14 days

Workers aged between       12 consecutive hours   A period of 48 hours in each
15 and 18                                         7 day period (technical or
("young workers")                                 organisational reasons may
                                                  allow a reduction to not less
                                                  than 36 hours)

The daily and weekly entitlements are separate. Daily rest does not count towards the weekly rest entitlement.

Rest breaks

Where an adult worker works more than 6 hours in any day, he is entitled to a rest break. The length of the rest break may be determined by a collective or workforce agreement. However, if there is no agreement, the worker's break must be at least 20 minutes long. He is entitled to spend that period of time away from his workstation. Young workers are entitled to a rest break of 30 minutes if they work for more than 41/2 hours in any one day.

If work is monotonous or where the work-rate is pre-determined and, as a result, the health and safety of a worker is put at risk, an employer must ensure that the worker is given "adequate rest breaks".

Is there an opt-out?

The various rest-related entitlements may be altered or excluded but only by means of a collective or workforce agreement.

ANNUAL LEAVE

The Regulations create an entitlement to a period of paid annual leave.

Who is entitled?

Anyone who has worked for an employer for longer than 13 weeks becomes entitled to a minimum period of annual leave. Once the 13 weeks are up, the full entitlement is immediately conferred.

To how much holiday are they entitled?

The precise entitlement depends on when the particular leave year commences. For instance, if the worker is entitled to a number of days' leave in each calendar year, the present leave year will have commenced on 1 January 1999. Leave years which commence on or after 23 November 1998 create an entitlement to 3 weeks' leave plus "a proportion of a fourth week equivalent to the proportion of the year beginning on 23 November 1998 which has elapsed at the start of the leave year". Leave years which commenced before that date create an entitlement to 3 weeks' leave. For leave years that commence on or after 23 November 1999, the entitlement is 4 weeks. If a worker joins part way through a leave year, his entitlement is pro-rated.

Our contracts of employment don't specify a leave year.

If the contract of employment is silent as to the commencement of the leave year, it is treated as being 1 October for those workers already employed as at 1 October 1998 and the anniversary of their start date for every worker taken on on or after 1 October 1998.

Can the leave entitlement be carried over into subsequent leave years?

No. Nor is there any obligation to pay for untaken holiday unless the worker has left your employment.

Can't I just agree to make a payment in lieu?

No. The intention behind the Regulations is to encourage workers to take their holidays.

Can I stipulate when the leave is to be taken?

Yes. The Regulations entitle an employer to require that a worker should work on a particular day or that he should take his leave on a particular day. The employer must give notice of the requirement. If the employer wants to insist on holiday being taken on a particular day the period of notice must be twice as long as the period of leave he wants the worker to take. So, if he wants the worker to take 3 days at Christmas he must give him 6 days' notice. The same period applies where the worker wishes to give notice of his proposed holiday dates.

If the employer wants to prevent holiday being taken on a particular day or days the period of notice must match the number of days on which leave is not to be taken. For example, if an employer wants his workers to be available for the third week of July he must give them a week's notice.

Where the employer and the worker have contradictory intentions, it is the employer's wishes that prevail.

What if the worker leaves part way through a leave year?

The employer has to pro-rate the entitlement to the proportion of the leave year that has elapsed on the date of termination. If the worker has not taken his appropriate entitlement, a payment in lieu must be made. On the other hand, if the worker has had more holiday than his pro-rated entitlement he may be required to make payment to the employer, or perform some additional work, to make up the difference.

DO THE REGULATIONS APPLY TO ALL WORKERS?

No, there are exceptions. Most of these exempt particular industry sectors such as transport, sea-fishing and doctors in training. There is one general exception - workers whose working time is not measured or predetermined or who can determine their own working time. The Regulations include examples of the sort of worker they have in mind:

  • managing executives or other persons with autonomous decision-taking powers;
  • family workers;
  • workers officiating at religious ceremonies in churches and religious communities.

The DTI's Guidance summarises the provision as relating to "workers who have complete control over the hours they work and whose time is not monitored or determined by their employer". Seasoned Employment Tribunal veterans will immediately recognise this as exactly the sort of ambiguous definition that is likely to give rise to complex, lengthy and expensive litigation.

If a worker falls into this category he will not have the right to a 48 hour working week, to the minimum periods of daily or weekly rest or to rest breaks. The entitlement to annual leave still applies.

Special categories

The restrictions on working hours for night workers and the entitlements to periods of uninterrupted daily and weekly rest and to work breaks within the working day are excluded in relation to a number of specific categories of worker:

  • those who work a long way from where they live or who have two or more places of work which are a long way apart;
  • those engaged in security or surveillance activities at places of work that require a "permanent presence in order to protect property and persons";
  • those engaged in activities that require continuity of service or production. Those who work in hospitals or prisons, dock or airport workers, postal or television workers may all fall within this exception (the Regulations provide other examples);
  • those engaged in work affected by a foreseeable surge of activity. This might include candy floss salesmen who will be busier during summer than winter, or postal workers at Christmas or on Valentine's Day;
  • those whose activities are affected by unforeseen or exceptional events or the risk or occurrence of an accident. If the sea-wall is crumbling, rest periods may be suspended. The Regulations suggest, however, that the entitlements may not be suspended where an "exceptional event" occurs whose consequences could have been avoided if the employer had taken "all due care".

Shift workers

Where a worker is changing shifts, he may find it impossible to take his entitlement to a daily or weekly rest break. The Regulations specifically exclude the entitlements in such circumstances. There is a similar exception applicable to those engaged in activities involving periods of work split up over the day. The Regulations give cleaning staff as an example of the sort of worker covered by this exception.

WHAT IF I DON'T COMPLY

The Government has made sure that failure to comply is an unwise option. The right to a 48 hour working week and the restrictions on night work, are considered to relate to the health and safety of the workers. As a result, the Health and Safety Executive or, where relevant, the Local Authority have an obligation to ensure that the Regulations are enforced. A failure to comply with the requirements of the Regulations may result in a criminal conviction and a fine.

Individual workers have the right to make a complaint directly to an Employment Tribunal where the employer has failed to comply with rest or holiday-related obligations (though not the 48 hour working week or the restrictions on night work).

If you subject a worker to a detriment for refusing to comply with a requirement imposed in contravention of his rights under the Regulation, refusing to forgo his rights, refusing to sign a workforce agreement, acting as a workforce representative (or standing for election as a representative), or alleging that you have breached his rights (whether by bringing proceedings or otherwise) the worker may again make an application to an Employment Tribunal. Similarly, a dismissal for any of those reasons will be automatically unfair.

Compliance is advised!

FURTHER INFORMATION

If you would like further information on the Working Time Regulations, or any aspects of the law relating to employment, please call one of the following members of the Human Resources Department at Norton Rose:

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.

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