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Working Time Regulations

16 June 2005
Working Time Regulations

Working hours is governed by the Working Time Regulations (WTR) which came into force on 1 October 1998, implementing the European Working Time Directive and parts of the Young Workers Directive relating to the working time of adolescent workers (i.e. workers aged between 15-18, but not including workers under the compulsory school age). The WTR have been amended by the Working Time (Amendment) Regulations 2001 and the Working Time (Amendment) Regulations 2003.

What does it say? The Regulations provide the following:
• Maximum working time of 48 hours a week (40 hours for young workers), upon average (the workers can choose to work more if they want to).
• Maximum working time of 8 hours a day for night workers (and young workers).
• A right for night workers to receive free health assessments.
• A right to 11 hours rest a day (12 days for young workers).
• A right to a day off each week.
• A right to an in-work rest break if the working day is longer than 6 hours.
• A right to four weeks' paid leave per year.

What are the maximum hours someone is allowed to work? Workers cannot be forced to work more than 48 hours a week on average unless the employer has first obtained the worker's agreement in writing. Working time includes travelling which is part of the job, working lunches and job related training, but not travelling between home and work or a lunch break.

How do you work out the hours? The number of hours worked each week should be averaged out over 17 weeks or however long a worker has been working if this is less than 17 weeks. This period of time is called the ‘reference period'. Working employers can agree to calculate the average weekly working time of a period of up to 52 weeks under a workforce collective agreement. The reference period may also be extended to 26 weeks in other circumstances (see below). The average weekly working time is calculated by dividing the number of hours worked, by the number of weeks over which the average working week is calculated, for example 17. If the worker is away during the reference period for any reason because he or she is taking paid annual leave, maternity leave, or is off sick, you will need to make up the time in your calculations.

What are the rules on breaks? If a worker is required to work for more than six hours at a stretch, he or she is entitled to a rest break of 20 minutes. The break should be taken during the six hour period (not at the beginning or end) and the exact time the breaks are taken is up to the employer to decide. Employers must ensure that workers can take their rest, but are not required to make sure that they do so. The recent case of Gallagher v Alpha Catering Services [2005] IRLR 105 has held that periods of "down time", where a worker is not actively working but is answerable to the company if required, are not considered to be rest breaks. Therefore an employer cannot argue that because an employee has periods of down time whilst he is at work, there is no need for rest breaks. If an employer is employing a young worker the rest break must be 30 minutes should they work for more than 4 ½ hour at a stretch. A young worker's entitlement to rest breaks can be changed or excluded only in exceptional circumstances.

A worker is entitled to a daily rest period of 11 uninterrupted hours between each working day and a weekly rest period of one whole day off each week. This can be averaged over a two week period meaning workers can take two days off a fortnight. Again employers must make sure that workers can take their rest, but are not required to make sure they do so. In addition, a young worker is entitled to 12 uninterrupted hours in each 24 hour period as their daily rest, and two days off in each week for their weekly rest which cannot be averaged over a two week period. If the nature of the job makes this unavoidable, a young worker's weekly time off can be reduced to 36 hours.

What about shift work? Shift workers must be provided with equivalent periods of compensatory rest. Whilst there are no regulations or guidelines which indicate within what period the period of compensatory rest should be given, it must be remembered that these are primarily health and safety regulations and must be reasonably conformed to. In exceptional cases where it is not possible to give compensatory rest period, the employer can grant the employee "appropriate protection" to safeguard the individual's health and safety. There are no guidelines as to what this phrase means.

What about night time workers? Night workers should not work more than eight hours daily on average, not including overtime except guaranteed overtime. A night worker is someone who normally works at least three hours a night and night time is considered to be between 11.00pm and 6.00am, although workers and employers may agree to vary this. If they do, it must be at least seven hours long and include the period from midnight to 5.00am to be included as night time work.

An employer should ensure that no young worker employed by him works in the period from 10pm to 6am (or 11pm to 6am where it is contractually agreed that the worker will work past 10pm) unless certain exceptions apply (e.g. the work is in catering, a hotel, restaurant, bakery etc). It is always prohibited for a young worker to work between the hours of 12am and 4am.

What about holidays? Every worker is presently entitled to four weeks paid annual leave. A week's leave should allow workers to be away from work for a working week i.e. if they work a three day week the entitlement is twelve days leave. Bank holidays may be considered in calculating the leave requirements. Workers must also give the employer notice that they want to take the leave.

Following the introduction of the Employment Equality (Religion or Belief) Regulations 2003, it is good practice to sympathetically consider any annual leave requests which relate to religious holidays, where the worker has sufficient holiday entitlement and it is reasonably practicable for workers to be absent from work.

What about holiday pay? This is calculated in the same way as a week's pay.

For workers paid a fixed wage or salary, the minimum they should be paid for their leave is the pay due for the basic hours they are contracted to work. Pay for overtime hours is not included unless it is guaranteed overtime.

For piece workers or workers on commission, a week's pay for these purposes is the average hourly rate multiplied by the normal working hours.

If a worker leaves their job part way through a leave year, they have a right to payment for untaken leave.

What about part-timers? Part-time workers are to be treated as full time workers in relation to working hours. Their hours and holiday are simply calculated on a pro-rata basis as mentioned above.

Is there an opt out? An individual worker may agree to work more than 48 hours a week if he or she signs a written opt out agreement. The employer and worker can agree how much notice is needed to cancel the agreement, which can be up to three months, or otherwise a minimum of seven days notice. Employers cannot force a worker to sign an opt out and they cannot be fairly dismissed or subject to detriment for refusing to sign such an agreement. Employees must keep a record of who has agreed to work longer hours and retain these for 2 years.

Are there any flexibility in the rules? Employers and workers can agree that the night work limits, rights to rest periods and rest breaks may be varied, with the workers receiving "compensatory rest". They may also agree to extend the reference period for the working time limits up to 52 weeks. These agreements can be made by "collective agreements" (between the employer and an independent trade union) or a "workforce agreement" with elected representatives of the workforce.

Night work limits, rights to rest periods and rest breaks do not apply where there are special circumstances. This includes busy peak periods. In these cases the reference period for the weekly working time limit it extended from 17 to 26 weeks. In addition workers are entitled to compensatory rest.

What is the punishment if I don't comply? A worker who has been subjected to detriments on the ground that he has attempted to assert his rights under the Working Time Regulations, may apply to the Tribunal for a declaration to that effect and/or to seek award compensation. There is no upper limit to the compensation that the tribunal can award.

A dismissal will be automatically unfair if the reason or principal reason for it is that the employee refused to forgo a right under the Regulations.

The Regulations have been amended to provide that if any of the requirements under the Regulations are breached by an employer, then the employer will also be guilty of an offence punishable by a fine.

An employer who interferes with or disrupts any investigations made by an inspector under the Regulations, will also be guilty of an offence punishable by a fine. Where this involves contravention of a requirement or prohibition imposed by an improvement notice or prohibition notice then the employer will be liable for a fine or imprisonment of up to two years.

Jonathan Exten-Wright
Jonathan Exten-Wright is a partner in the Employment Department of DLA Piper Rudnick Gray Cary UK LLP.
jonathan.exten-wright@dlapiper.com / www.dlapiper.com

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