Employment Advice (For Business)
Working Time Regulations – the Essentials
Regulations limiting the amount of time an employee can work every week were brought into force through The Working Time Regulations 1998. This regulation was subsequently amended by the Working Time (Amendment) Regulations 2007 which came into force on 1st October 2007.
These regulations were implemented to protect the health and safety of UK employees from the negative effects of overwork and burnout.
What is the maximum number of hours an employee can work?
Full-time employees are subject to a maximum of 48 working hours per week, averaged over a 17-week period unless they choose to opt out of this limit. In some circumstances, the weekly hours may be averaged over 26 weeks. Employees are entitled to a 20-minute rest break if they work more than six hours in a single shift, and they must have 11 consecutive hours of rest between working days.
There are additional regulations that are sector specific. The Road Transport (Working Time) Regulations 2005 specifies the limits and rules applied to the transport industry. Working hours in aviation are set out in The Civil Aviation (Working Time) (Amendment) Regulations 2010 and the hours seafarers are allowed to work are covered in The Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018. Those involved in transport are clearly subject to stricter controls given the need for employees to be alert whilst carrying out their duties.
Annual leave entitlement
In addition to weekly working limits, the working time regulations also increased the number of days’ holiday employees enjoy each year. In 2007, through The Working Time (Amendment) Regulations 2007, holiday entitlement for employees was increased from 4 weeks to 5.6 weeks. This is usually expressed as 28 days’ holiday in each year. This is also pro-rated for part-time employees.
Night work
Due to the nature of night work and the increased risks involved in working at night, the regulations limit the hours that can be worked. These are a maximum of eight hours in any 24 averaged over a 17 week period. However, where the employee carries out heavy physical activity or the work involves mental strain or involved special hazards, there is a limit of eight hours that the employee is allowed to work.
Night work is considered work which is usually between the hours of 11pm and 6am and with a duration of at least seven hours and includes the period between midnight and 5am.
Overtime
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.
Opt-out agreements
It is possible for employees to opt out of the limit of 48 hours per week. They can do this if they are over 18 years of age. It must be voluntary and agreed in writing between the employee and the employer. The agreement must be specific with the employee and cannot be imposed on the entire workforce. Also, should an employee refuse to sign an opt-out agreement, they should not be discriminated against, disadvantaged or disciplined.
If an employee signs an opt-out agreement, they have the right to cancel it at any time by giving notice. The notice period can vary and should be specified in the opt-out agreement. In addition, if the opt-out agreement is incorporated into a contract of employment, the employee can still opt out of that part of the contract.
Record Keeping
Employers are obliged to keep records to show the average weekly working time limits are being adhered to. These records must be kept for at least 2 years. Occasional checks should be carried out of employees who work “standard” hours and are unlikely to reach the 48 hour threshold.
It is good practice to 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
The Health and Safety Executive or local authority inspectors can serve improvement or prohibition notices on employers. If an employer breaks the rules or fails to comply with an improvement notice they can face an unlimited fine and up to two years imprisonment. Repeated violations can lead to criminal charges.
Should an employer dismiss an employee because they are not prepared to work more than 48 hours, an employment tribunal can make a compensation order against the employer if the employee is found to have been unfairly dismissed.
Finally, there will be reputational damage for any employer found guilty of breaching the working time regulations.
Esther Marshall, Solicitor and Employment Law specialist, said:
“The Working Time Regulations can be a daunting prospect for employers, but failing to follow the requirements could lead to an Employment Tribunal claim. Taking specialist employment law advice, and making sure that policies and procedures are up to date, will help to minimise the risk of a claim.”