Regulations covering working hours apply to almost every business. Working time regulations aim to improve health and safety by controlling the hours employees work.
This briefing covers:
- The rules governing working hours, rest periods, annual leave and night work under the working time regulations.
- How to keep your paperwork in order.
- How the regulations are enforced.
1 The working week
Central to the working time regulations is the worker’s statutory right to a maximum average working week of 48 hours.
1.1 Hours worked are averaged out over a 17-week ‘reference period’.
- If the workers agree, the average can be calculated over successive 17-week periods, rather than on a rolling basis.
- For some special cases, the reference period is 26 weeks.
- The reference period may be extended to up to 52 weeks by agreement (eg where work fluctuates over the year).
- The average must be calculated in a way which takes into account periods of leave, sickness and so on. For example, a worker who has been on holiday for half of a 17-week period cannot be forced to work 96 hours a week for the remainder.
- For workers who have been employed for less than 17 weeks, the average is calculated from the time the worker started the employment.
1.2 Working hours include any time when the worker is at the employer’s disposal and is expected to carry out activities for the employer.
- Work-related training is counted as part of the working week.
- Travel time to and from work is not usually counted as working hours. However, travel as part of the employee’s duties is. Travel to and from clients at the start and finish of a day is now classed as working time where mobile workers have no fixed place of work (for example, care workers and installers of services in client’s homes).
- Lunch breaks are not working hours (but a working lunch is).
- Being on standby to be called out, if the employee is at the place of work, is counted as working hours. If the employee is on call and free to pursue leisure activities, it is not. For transport workers ‘periods of availability’ known in advance do not count as working time.
1.3 Workers (at the moment) can voluntarily agree to disapply the 48-hour limit.
All employees with at least 26 weeks’ service have the right to make a written request for flexible working.
2 Night work
2.1 Night workers (who regularly work at least three hours during night time) should not exceed an average of eight hours in each 24-hour period, averaged over 17 weeks.
- Night time is a period of at least seven hours which includes the hours from midnight to 5am. Unless otherwise agreed by the employer and workers, night time runs from 11pm to 6am.
- The averaging period can be extended by agreement or in specified circumstances.
- There is no opt-out facility for night work regulations.
2.2 Night workers whose work involves special hazards or physical or mental strain are limited to eight hours for every 24-hour period (eg workers in the steel industry).
- There are some exemptions in health and public services (eg nursing homes).
- Night workers in the transport industry are limited to ten hours in 24.
2.3 Night workers are entitled to a health assessment before being required to perform night work.
- 16 to 18 year olds should not normally be allowed to work nights.
- Adolescent workers are entitled to a health and capacities assessment, which covers the worker’s physical and psychological abilities to do the work.
- Assessments should be repeated regularly.
The maximum working hours apply to almost everyone (including transport and temporary workers). But the regulations allow for some derogations which modify the rules.
The maximum working week does not apply to workers with unmeasured working time or who determine their own hours of work.
- This is a limited exclusion category but typically includes managing executives and family workers.
- The genuinely self-employed are also excluded.
In specified circumstances, workers can receive compensatory rest when the demands of work do not allow the specified breaks. These include:
- Activities involving the need for continuity of service (eg hospital services, utilities).
- Activities where there is a foreseeable surge in demand (eg tourism).
The rules do not apply in the case of unexpected and unpredictable occurrences which are beyond the employer’s control.
3.1 Workers are entitled to a minimum 20-minute rest break in each shift lasting more than six hours.
- In specified circumstances, rest breaks can be accumulated.
- Adolescent workers (above the minimum school leaving age, but under 18) are entitled to at least 30 minutes, if they work longer than four-and-a-half hours.
3.2 Workers are entitled to 11 hours’ consecutive rest between shifts each day.
- In specified circumstances, rest periods can be accumulated.
- Adolescents are entitled to 12 hours’ consecutive rest each day.
3.3 Workers are entitled to one day off each week, or two days off every two weeks.
- In specified circumstances, days off can be accumulated and given later.
- Adolescents are entitled to two days off per week.
4 Holidays and leave
You are obliged by law to give everyone who works for you paid annual leave - unless they are genuinely self-employed.
4.1 The legal minimum for annual leave is 5.6 weeks per year.
- You cannot replace the holiday entitlement with pay in lieu, except when employment comes to an end.
4.2 Workers will normally be paid for a holiday at the time it is taken. It is no longer possible to pay ‘rolled-up holiday pay’ (ie weekly pay which includes a payment equal to one week’s holiday pay accrual).
- You should renegotiate any contracts that involve rolled-up holiday pay so that future holidays are paid at the time leave is taken.
4.3 Workers are entitled to take leave from the start of their employment.
4.4 Part-time workers and most fixed-term employees have similar entitlements to paid annual leave.
- Part-time workers’ entitlement is calculated pro rata.
For example, if full-time, five-days-per-week workers get 28 days’ paid holiday a year, part-timers doing the equivalent of two days’ work a week will be entitled to 11.2 days’ leave.
- Most fixed-term employees are entitled to no less favourable treatment.
The exceptions include apprentices, work experience placements of less than one year and people on training schemes.
4.5 You can exercise some control over the timing of employees’ holidays.
4.6 You need a system for deciding on holiday dates.
4.7 You need a policy on holiday rollovers.
- For example, you might specify that no more than one week’s unused holiday can be carried into the following year.
- Workers must take at least four weeks holiday a year. If they take less, they cannot carry this over. So a worker entitled to 5.6 weeks’ holiday a year cannot carry over more than 1.6 weeks’ unused holiday. The exception is where an employee has been unable to take their holiday. For example, those who have been on maternity or long-term sick leave.
Paid or unpaid leave?
There are specific occasions where you are obliged to give staff time off.
You must give paid time off to employees who are:
- Carrying out duties or receiving training as a health and safety representative.
- Carrying out duties related to your business as a representative of a recognised trade union or receiving training as a trade union representative.
- Looking for a job or arranging training for future employment while being
- Aged between 16 and 18 and training to NVQ Level 2 or equivalent. If they pass their 18th birthday, you must pay them until the training is complete.
- Carrying out duties or receiving training as an employee representative for consultation over collective redundancies or business transfers.
- Pregnant and attending ante-natal care.
You must give time off - but payment is discretionary - to employees who are:
- Undertaking public duties, such as acting as a magistrate, a member of a local authority, police or health authority or NHS trust, a member of the Volunteer Reserve Service within the Army (TA), Navy or Royal Marines, or a member of an environmental agency.
- Taking part in recognised trade union activities that are not directly related to your business.
- Attending up to two ante-natal appointments with a pregnant partner.
To avoid problems later on, make sure you have accurate and up-to-date records.
5.1 You may need to keep records to show that you are complying with the regulations.
- If you employ on a normal nine-to-five contract, you do not need to keep special records. Payslips that quote hours worked are sufficient.
- You should keep records of night work and any related health assessments.
Records must be kept for at least two years.
5.2 You must keep a record of workers who have signed an opt-out agreement.
- Agreements should be in writing and signed by the worker.
- Reference to an opt-out agreement should be made in the worker’s contract but should not be incorporated within the contract - it should be signed separately.
- The agreement can be cancelled at any time, but the worker must give the employer seven days’ notice, or longer if agreed (up to three months).
Records must be available for inspection by the relevant authorities (see 6).
6.1 The working time limits are enforced by the health and safety authorities.
- This is usually the Health & Safety Executive (HSE) for factories and the local authority for offices, shops and so on.
6.2 Entitlements to rest periods, breaks and leave are enforced by employment tribunals and the county court system.
6.3 In practice, you are most likely to run into problems if an employee complains.
6.4 Penalties for breaches of the regulations can be high.
- Breaches of working time limits can lead to improvement notices being issued. Subsequent failure to comply can lead to unlimited fines and imprisonment.
- Employment tribunals can order appropriate compensation payments (limited to £78,962 where there has been an unfair dismissal).
7 Getting help
7.1 For more information on holiday entitlements and the working time regulations, contact Acas on 08457 47 47 47 or visit www.acas.org.uk.