What are Working Time Regulations?

Working within a business culture in which long working hours are deeply embedded, rules and regulations surrounding employee working hours have never been more important to UK businesses.

According to a report by the CIPD, full-time workers average around 39.1 hours a week in the UK, a figure that is far higher compared to many other European companies. Their own absence management survey for 2016 also showed that over half of employers surveyed stated that long hours were the norm in their organisation, and that as a result, a long-hours culture can be closely associated with increased feelings of stress, anxiety and stress-related absences.

With many organisations suffering from a ‘top-down’ culture of expectation around constant pressure and punishingly long hours, research from the TUC has highlighted that five million workers in the UK are clocking up nearly £5,000 each in unpaid overtime every year.

What are Working Time Regulations?

The UK’s Working Time Regulations (1998) were put in place in order to outline the minimum conditions that employees and workers are entitled to in regard to working time constraints, rest entitlements and annual leave from the workplace.

How have they evolved?

With many laws regarding working hours, rest periods and health and safety dating back to Victorian times, and vast differences between working hours and productivity levels spanning across Europe, the introduction of working time regulations in the UK aimed to implement a wider policy known as the EU Working Time Directive. This aimed to help to standardise working hours, and to prevent employees from working above the maximum hours stipulated.

How many hours a week can an employee work?

For those employees who have not opted out of working time regulations, the maximum hours that they can be required to work by an employer is 48 hours per week on average. An average working week is normally calculated by taking weekly hours over a 17-week reference period – allowing employees to work more than 48 hours a week on some weeks so long as their overall average does not exceed 48 hours.

However, you should be aware that an employee can agree to work beyond the 48 hours stipulated, as long as this has been mutually agreed with you and has been formally agreed in writing by both parties. This is commonly known as an opt-out agreement.

However, you must not ask an employee to sign an opt-out agreement – it must be instigated by the employee themselves, and they also must not suffer any ill treatment or discrimination if they choose not to do so. Workers also have the right to cancel a previously agreed opt-out agreement at any time by providing you with a period of notice. The notice given must be at least seven days, although you can stipulate a longer notice period if you need to, as long as this is clearly stated on the opt-out agreement and it is no longer than three months.

Are there any exceptions?

There are some categories of both industry and worker/employee where it could be a key requirement to work for more than 48 hours per week. These can include:

• Where 24-hour staffing is required (E.g. within the NHS)
• Being in the armed forces or the police
• Working in the security or surveillance industries
• Working as a lorry, coach or heavy goods vehicle driver
• Trading as a fisherman, seafarer or working on vessels on inland waterways
• Where working time is not measured and the person in question is in control (E.g. You are a managing executive of a business)

What counts as working time?

When working out exactly what average working hours constitute for an employee, you should be aware that the following do not count towards working hours:

• Days of statutory holiday leave
• Days of sick leave
• Days of maternity, paternity, adoption or parental leave
• Lunch breaks (Unless they are frequently required to walk through them)
• The journey to and from work
• Time spent on any work taken home (unless pre-agreed by yourself with an employee)

Does travelling count towards working hours?

Any worker or employee who travels to a fixed workplace will not normally be able to count their travel time towards their working hours. However, any travel that may be required once they have reached their place of work should be counted as working time.

If a worker has a fixed place of work, but is asked to work from another location, or is frequently travelling to working or customer locations, then they could classify their travel time as working time, depending on their contract.

What are the rules around breaks and rest periods?

Essentially, workers and employees within UK businesses have the right to:

• At least a 20-minute break if they work for six hours or longer per day. Most organisations do offer longer or more frequent breaks than this.
• Not work an average of more than 48 hours per week, although an employee reserves the right to opt-out of working time regulations if they wish to.
• 11 or more hours of consecutive rest in any period of 24 hours
• One day off from work each week, or at least two consecutive days off per fortnight
• A limit on the normal working hours of night workers to an average of eight hours in any 24-hour period.

How do the regulations relate to zero hours contracts?

Regulations can be confusing to those on zero hours contracts, but the most important area to be aware of is that you do not have to offer a minimum number of working hours, other than what is stipulated within their existing contract.

If they are not contracted to work any specific hours, then they are employed on a zero hours contract. This is generally seen to a be a contract between an employer and a worker where:

• There is no obligation for the employer to offer work
• There is no obligation for the employee to take any work that is offered

What about night workers?

In addition to the 48 hours stipulated by the working time regulations, there are special rules which apply to those who work nights.

An employee is classed as a night worker if they regularly work for at least three hours per night (defined as the hours between midnight and 5am). Night workers also cannot work more than 8 hours per day in any 24-hour period.

As an employer, you must also offer a comprehensive health assessment to any worker before they undertake full-time working hours at night. The health assessment must be offered regularly, and you must also be prepared to offer other suitable where possible if an employee is deemed unable to continue with night working.

Does the age of the employee matter?

Age is normally discussed in relation to working time regulations due to the differences in requirements for breaks and rest periods. However, those who are over school leaving age but under 18, are legally restricted to only working for a maximum of 8 hours per day, or 40 hours per week.

In relation to rest breaks, the law for under 18’s stipulates the following:

• A 30-minute rest break if the employee works for more than four hours and 30 minutes within any one day period
• At least 12 hours of rest between each working day
• At least two rest days per week

Under 18’s are also more restricted when it comes to working at night, with the law stating the following:

• Under 18’s cannot usually work between 10pm and 6am – If you do require someone to work after 10pm, you must ensure that they finish before 11pm, and do not start working again before 7am.
• Under 18’s cannot work between 12am-4am under any circumstances

The only exceptions to these rules are reserved for people working in specific trades such as healthcare, agriculture, retail, hospitality and catering.

How does overtime fit in?

Officially, overtime is usually classed as hours worked over a company’s regular full-time requirement, as laid out within their working time regulations. When an employer normally works fixed hours, overtime would be classed as any additional hours that are necessary.

Overtime offered to staff can be compulsory or voluntary, but is a more common occurrence for hourly paid staff than those on yearly salaries. If you require your staff to work overtime, it must be stipulated within your main employment contract. You should also be aware that there is no legal right to receive an additional payment, or to be paid at a higher rate for any overtime worked.

Can an employee raise a concern about working time regulations?

Employees and workers are entitled to raise a concern about any employer who they feel may have breached working time regulations.

If they can prove that they are not complying with regulations, workers can refer claims to the main Tribunal Service, or else to the official Health & Safety Executive. The HSE is officially responsible for the for the enforcement of the maximum weekly working time limit, night work limits, and health assessments for night work. Claims in relation to time off from work, rest breaks or annual leave can all be brought before an employment tribunal.