Working time: 20 FAQs

1. What is the maximum number of hours that people are allowed to work during the week, on average?
2. How do we accommodate occasional rush jobs, when people might have to work 15 hours a day for six days running?
3. Does this 48 hours include overtime?
4. We work very long hours for some months a year, but relatively short hours otherwise. Do we have to take on extra people for the seasonal peaks?
5. If we do take on extra people for seasonal peaks, are they also covered by the 48-hour maximum?
6. If people have been on holiday, can we ask them to work extra time to bring their average working hours up?
7. Do we still have to have a written agreement with employees who agree to disapply the limit?
8. Where one employee in a team refuses to work more than the statutory maximum hours, though the rest are willing, is there anything we can do?
9. Is travelling time included in working hours?
10. Does time spent on training count as working time?
11. Does lunch time count as working time?
12. How do we deal with the hours when people are on call?
13. We asked people to come in over a weekend, to rescue what they could from our premises after a flood. Does the time count towards the 48-hour limit?
14. What is the current position on paid annual leave?
15. How do we calculate the holiday entitlement of part-timers?
16. How many days off do people have to have during the week?
17. Is the entitlement of young workers different from that of adult workers?
18. We work in the catering industry and use split shifts. Apart from the 48-hour limit, are there other regulations we might fall foul of?
19. Is there a limit on the amount of night-time working that we can ask from our employees?
20. What does the annual health assessment for night workers entail?

1. What is the maximum number of hours that people are allowed to work during the week, on average?

Under normal circumstances, the maximum is 48 hours a week. The exceptions include:

Workers aged under 18 are entitled to work no more than eight hours per day and 40 hours per week. They are not permitted to 'opt-out' of these limits, even if they want to. Young workers are also entitled to longer breaks during the working day and between working days. They must have two days off a week; at least 30 minutes' break if they are working for more than four and a half hours consecutively; 12 hours off between working days and at least 5.6 weeks' holiday per year.

The European Commission is working on updating working time legislation, and one of the areas on which it is concentrating is the 'opt-out', where it is seeking changes to provide workers with more protection against being pressurised into signing away their rights to a 48-hour maximum working week.

Under a deal with the European Union, the UK has agreed that the opt-out will be retained in future, but the opt-out will have to be renewed annually, opt-outs signed within the first four weeks of employment are void, workers can withdraw within six months of signing, or on two months' notice, and a maximum 60-hour working week will apply to opted-out workers, calculated as an average over three months (unless a worker's on-call time is treated as working time, in which case the limit is 65 hours). There will be an exception for short-term workers on contracts of less than ten weeks, who may work up to 78 hours per week. As yet, no date for introduction of the new rules has been set.

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2. How do we accommodate occasional rush jobs, when people might have to work 15 hours a day for six days running?

Average weekly hours are currently worked out over a 17-week reference period (or in certain circumstances a longer period - see question four). Provided that employees are not asked to work more than an average of 48 hours a week over that period, or a total of 816 hours over the whole period, you will comply with the regulations. So you can accommodate the extra hours worked when you have rush jobs, by monitoring and managing working hours overall. The reference period is likely to be extended to one year, as a result of the European Commission's updating exercise (see question 1).

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3. Does this 48 hours include overtime?

Yes.

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4. We work very long hours for some months a year, but relatively short hours otherwise. Do we have to take on extra people for the seasonal peaks?

The reference period can be extended from 17 to 26 weeks - or even to 52 weeks (see question 2). The reference period is automatically extended to 26 weeks where a worker is covered by one of the 'special case' exemptions (set out in the Regulations). Provided there is an agreement with the workforce or a recognised trade union, the reference period may be extended to up to 52 weeks (which may in future become the standard reference period - see question 2). The current permitted extensions are designed to allow for seasonal industries, or enterprises which require round-the-clock working such as hospitals or utilities. So again, working time management may enable you to avoid the need to take on extra seasonal staff.

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5. If we do take on extra people for seasonal peaks, are they also covered by the 48-hour maximum?

Yes, unless they are willing to sign 'opt-out' agreements (see question 1).

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6. If people have been on holiday, can we ask them to work extra time to bring their average working hours up?

It depends. The first four weeks of annual leave have to be excluded from the relevant reference period (as do maternity leave and illness). However, the extra days (or in the case of part-timers - see question 15 - fractions of days) that were added to the statutory minimum entitlement on 1 April 2009 can be treated as 'non-working time' within the relevant reference period, so that there would potentially be scope for asking people who have already taken four weeks of annual leave (or the part-time equivalent) to work some extra time.

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7. Do we still have to have a written agreement with employees who agree to disapply the limit?

Yes. Such agreements must be made voluntarily - any attempt to apply pressure is unlawful (see question 8). They must also be in writing, and must be signed by each individual employee involved. Workers may withdraw their agreement to disapply the limit at any time, providing they give the notice required under the agreement. The maximum notice that you can request from a worker is three months.

In recent years the government has cut back sharply on the amount of record keeping required in relation to working hours of opted out workers, but the European Commission is now suggesting that this has gone too far. Under the latest proposals (see question 1), employers would have to keep records of the hours actually worked, and make them available to the authorities if required to do so.

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8. Where one employee in a team refuses to work more than the statutory maximum hours, though the rest are willing, is there anything we can do?

No. If you dismiss someone who refuses to work longer hours, or attempt to subject him (or her) to any detriment (for example, by shifting him to another less attractive job), he can complain to an Employment Tribunal. Any dismissal will be automatically unfair - regardless of how long the employee has been with you: he does not need the normal one year of continuous employment to put in a claim in this case. If he complains of detrimental treatment short of dismissal, and the Employment Tribunal finds in his favour, it can award him whatever compensation it finds appropriate.

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9. Is travelling time included in working hours?

Where the work involves travelling - for example, a travelling salesman - the answer is yes; otherwise usually no. Travel between home and work is unlikely to count as working hours, though it will depend on whether the travel is undertaken in normal working time.

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10. Does time spent on training count as working time?

Generally yes, provided that the training is work-related.

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11. Does lunch time count as working time?

A normal lunch break is excluded from working time. However, a working lunch would be included (for example, a business lunch).

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12. How do we deal with the hours when people are on call?

The current position is that hours spent on call away from the workplace, where the employee is free to pursue leisure activities, only count as working time for that time which is actually spent undertaking normal duties. Where time on call has to be spent at the workplace, however, the European Court of Justice has ruled that this counts as working time, whether or not the employee is actually working. The British Government is still arguing for a change in European Union law to allow for a more precise definition of working time (or non-working time) under such circumstances, but meanwhile the sensible course is to keep on call time on the premises down to a minimum.

If you believe that you might have a problem in this regard, you should take specific legal advice as soon as possible, since the cost of ignoring it could be very high.

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13. We asked people to come in over a weekend, to rescue what they could from our premises after a flood. Does the time count towards the 48-hour limit?

Yes. With emergencies, as with seasonal work, it is possible to extend the reference period from 17 to 26 weeks. But people who came in over the weekend would be entitled to 'compensatory rest' - that is, enough time off to ensure that they have at least one extra full day off per week, over the next two weeks. The European Court of Justice has ruled that such 'compensatory rest' must be taken immediately after the extra work was done, but latest proposals from the European Commission would require it to be taken within 72 hours (see question 1). The British Government is arguing for greater flexibility where longer periods of unplanned but essential work are required, with the 'compensatory rest' being made available over the following three weeks.

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14. What is the current position on paid annual leave?

Every worker has been entitled to 5.6 weeks' paid leave per annum since 1 April 2009 (ie 28 days in a full leave-year for a full time member of staff). The statutory holiday is worked out on a pro rata basis for part time workers (ie an employee who works three days a week would be entitled to 16.8 days per year).

The aim is to ensure that all workers can take paid time off for public and bank holidays, as well as for their annual leave, although there is no specific statutory right to either time off or pay on bank holidays. If you do pay employees for holiday taken on a public or bank holiday you can count that towards their statutory minimum holiday entitlement. It is advisable to set out your policy on employees' rights to time off and pay in their contract of employment to avoid any misunderstandings and disputes (see Holidays).

If you already offer paid bank holidays as well as annual leave (ie 28 days' paid holiday to those who work a five day week), you are not required to extend the holiday entitlement any further, though you may of course do so if it seems appropriate - if, for instance, you want to maintain a differential or reward long service.All employees must take at least four weeks' holiday per year (or the equivalent for part-time workers). The remaining 1.6 weeks' holiday may be rolled over to the following year. However, you are no longer permitted to give pay in lieu of holiday except where you give holiday in excess of the statutory 5.6 week minimum.

Paid leave accrues, at the rate of one-twelfth of the annual entitlement each month, from the beginning of the employment. It is no longer lawful to 'roll up' holiday pay, or to deny workers the right to leave until they have been with the employer for 13 weeks. The right to paid annual leave continues to accrue, even during periods of absence from work (for example, for illness or maternity leave).

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15. How do we calculate the holiday entitlement of part-timers?

Although there has recently been at least one case suggesting that part-timers who do not work on Mondays are not entitled to paid time off in lieu of Bank Holiday Mondays, the intention of the legislation is quite clearly that part-timers, like full-timers, should be able to take sufficient paid leave to be away from work now for the equivalent of 5.6 weeks  in a full leave-year.

The Department for Business, Innovation and Skills (formerly BERR) points out on its website that a week's leave is 'the same as the length of time you work in a normal week' - so people who normally work less than full time get less paid time off, on a pro rata basis. Where full-time workers get more paid annual leave than the statutory requirement, then part-timers will also be entitled to more holiday leave, on a pro-rata basis.

Holiday entitlement has to be worked out on the number of hours normally worked in the week, if necessary averaged over a 12-week period. So if you have a part-timer who has worked 32 hours for six of the last 12 weeks, and just five hours a week for the rest of the period, his (or her) annual holiday entitlement (assuming he works a full leave year) would now be:

(32 x 6) + (5 x 6) = 222 hours in total

Average hours worked per week: 222/12 = 18.5

Annual holiday entitlement: 18.5 x 5.6 = 103.6 hours

This assumes that the same working pattern is maintained throughout the year. If it varies, you may need to work out the average working week on an annual basis, though you may not withhold paid holiday in the meantime - you would have to make an estimate, but reserve the right to amend it later in the year, or obtain your worker's written permission (a legal requirement) to recover holiday money overpaid.

The sums involved may well leave you with awkward fractions of holiday time to allocate and pay for. There are various ways of dealing with these:

• you can give pay in lieu of time off (but only for holiday over the statutory 5.6 week minimum)
• you can round the time off up (but not down) to the nearest day or half day
• you can give them as part of an otherwise unpaid day off
• you can use them to allow the worker to come in late or go early
• you can ask the worker to carry the 'new' holiday time forward to the following year (but everyone must be required to take at least the equivalent of four weeks of holiday in the current leave year)

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16. How many days off do people have to have during the week?

They are entitled to at least one day (24 hours) off each week, although this can be deferred (but not abandoned) in particular circumstances: for instance, where there is a high level of seasonal work, or where round-the-clock working is required. The 24-hour break each week can currently (if it suits you as employer) be replaced by two 24-hour breaks, or one 48-hour break (24 hours back-to-back) in each 14-day period (but see question 13).

Workers aged under 18 are entitled to work shorter days and to take longer breaks between working days (see question 17).

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17. Is the entitlement of young workers different from that of adult workers?

Yes. 'Young workers' (ie 16 and 17 year olds) are entitled to two full days off a week, although this can be reduced to 36 hours if the nature of the job makes it unavoidable. It is also worth noting that 'young workers' may not ordinarily work more than eight hours a day and 40 hours a week. These working hours may not be averaged out and there is no opt-out available. They are also entitled to marginally longer breaks in the working day (30 minutes), if a period of work extends to 4.5 hours.

The rules for school age workers are even stricter. They must not:

• work for more than two hours on a school day or a Sunday
• work for more than 12 hours a week during term time

• work for more than five hours (13 and 14 year olds) or eight hours (15 and 16 year olds) on a Saturday

• work for more than 25 hours (13 and 14 year olds) or 35 hours (15 and 16 year olds) during school holidays

They are also entitled to longer rest breaks during a working day and are required to take two weeks off during school holidays each year. These rules apply regardless of whether the work they are undertaking is paid or unpaid. 

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18. We work in the catering industry and use split shifts. Apart from the 48-hour limit, are there other regulations we might fall foul of?

Yes. Workers are entitled to 11 hours of continuous rest every day (12 hours for young workers), which yours will not be getting if, for instance, they start at midday and do not finish until the small hours. Moreover, if they work late on several nights a week, you might be caught by the regulations on night working (see question 19).

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19. Is there a limit on the amount of night-time working that we can ask from our employees?

Yes. Employees who regularly work upwards of three hours a night between 11 pm and 6 am will be classified as night workers. Night workers may not work more than eight hours a night, averaged over 17 weeks (or more than eight hours in any night in hazardous occupations, where no average applies). They must be offered a free health assessment before they start working nights, and further free health assessments regularly thereafter. In many cases, once a year would be appropriate.

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20. What does the annual health assessment for night workers entail?

The first stage should preferably be a health questionnaire, which should be drawn up with the help of a doctor or nurse who knows what the health effects of night time working are likely to be. If the answers to the questionnaire raise any doubts about the individual's fitness to work at nights, or suggest that his (or her) health may be suffering because of night time working, the employer must then offer that employee a free medical examination, and act on the findings if necessary. You have to take particular care with new and expectant mothers, and with 'young workers'. You cannot wait until a worker requests an assessment - you must offer one.