Guidance Notes – Working Time Regulations 1998

Guidance Notes – Working Time Regulations 1998

 

 

  1. Working Time Regulations (WTR) 1998 – What You Need To Know

 

The Working Time Regulations (WTR) implement the European Working Time Directive.

 

 

  1. The Employer’s Obligations

 

An employer’s obligations under the WTR 1998 are to:

  • Take all reasonable steps in keeping with the need to protect workers’ health and safety to ensure that each worker’s average working time (including overtime) does not exceed 48 hours per week.
  • Take all reasonable steps, in keeping with the need to protect health and safety, to ensure that night workers’ normal hours of work do not exceed eight hours per day on average. A night worker is someone who normally works at least three hours during the night period, which is the period between 11 pm and 6 am.
  • Ensure that no night worker doing work involving special hazards or heavy physical or mental strain works for more than eight hours in any day.
  • Ensure that all night workers have the opportunity of a free health assessment when starting night work and at regular intervals thereafter.
  • Transfer a night worker to day work where possible, if a doctor advises that the night work is causing health problems.
  • Allow workers 5.6 weeks paid holiday each year (i.e. 28 days holiday for a full-time worker).
  • Give workers “adequate” rest breaks where the pattern of work is such as to put their health and safety at risk.
  • Allow workers the following rest periods:
  • 11 hours uninterrupted rest per day;

(i)         24 hours uninterrupted rest per week (or 48 hours’ uninterrupted rest per fortnight); and

(ii)        a rest break of 20 minutes when working more than six hours per day.

  1. Record-Keeping

The employer has a duty to keep and maintain records showing whether the limits on average working time, night work and provision of health and safety assessments are being complied with in the case of each worker. The employer should also retain up-to-date records of workers who have agreed to opt out of the 48-hour working week (see below). Employers should maintain a list of the names of such workers, and a copy of the opt-out agreements.

In respect of employees with more than one job who have not signed the Working Time Directive Waiver, employers should use the Letter Requesting Details of Work Done for Other Employers to ensure they comply with the WTR.

Failure to comply with the record-keeping requirements is a criminal offence, punishable by a potentially unlimited fine.

  1. Opting Out

Many of the rights granted by the WTR 1998 can be waived or varied by an individual, collective or workplace agreement. See the Working Time Directive Waiver, which should be used where an individual worker agrees to work longer than the 48-hour limit for a specified period or an indefinite period.

Agreeing to a waiver must be voluntary on the employee’s part. Workers have the right to claim compensation in an employment tribunal if they suffer detriment or are dismissed by the employer because they do not agree to opt out.

When an employee opts out of the 48-hour week, he or she can opt back in by giving notice to terminate the agreement.

The 48-hour week does not apply to ‘young workers’ i.e. those who are above compulsory school age but are not yet 18 years old. Young workers cannot work more than eight hours a day or 40 hours a week (subject to some exceptions) and cannot agree to opt out of these requirements.

  1. Working Time

“Working time”, for the purposes of the WTR, is any period when the worker is working, at the employer’s disposal and carrying out his or her duties. This includes periods when the worker is undergoing training directly related to his or her job and travel where it is part of the job, e.g. for a travelling salesperson, and business lunches.

Working time does not include routine travel between the worker’s home and his or her fixed place of work, rest and lunch breaks when no work is done, or time spent travelling outside normal working hours.

However, where workers do not have a fixed or habitual place of work, the time spent travelling each day between their homes and the premises of the first and last customers designated by the employer has been held to constitute working time.

If employees are required to work regular hours on a stand-by/call out basis and they are called out frequently, employers should be aware that they could be in breach of the WTR unless the employee has signed an opt-out agreement.

  1. Exemptions

Workers may have to work more than 48 hours a week if they work in a job:

  • Where 24-hour staffing is required;
  • In the armed forces, emergency services or police;
  • In security or surveillance;
  • As a domestic servant in a private household;
  • As a sea-farer, sea-fisherman or worker on vessels on inland waterways;
  • Where working time is not measured and the worker is in control e.g. as with a managing executive with control over their decisions.