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Employment Law

Working Time Regulations

The Working Time Regulations 1998 (‘The Regulations’) are health and safety rules which seek to ensure workers get sufficient rest to ensure that they can carry out their work safely and to protect their long-term health. There are limits to the number of total hours per week an individual can work irrespective of how many jobs they have. It is thus the duty of the employer to record the hours worked by their employees in order to comply, but equally employees have responsibility for their own health and safety since in some circumstances there is the choice of opting out.

Managing working time can be essential for businesses in industries where being on-call, working nightshift and working overtime are a matter of course since irregularities can easily creep up. This is why it is important for employers to know the legal working hours and rest requirements for their workplace.

What is ‘working time’?

The Regulations define working time in relation to a ‘worker’ which therefore makes the regulations applicability very wide in scope. A ‘worker’ is defined as:

‘an individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any professional or business undertaking carried on by the individual’.

Therefore this includes full time, part time, agency workers, casual workers and home workers. There are though some excluded sectors of work to which the Regulations do not apply (for example, sea fishing).

The definition of ‘working time’ in relation to a worker is given as:

‘(a) any period during which he is working, at his employer’s disposal and carrying out his activity or duties,

(b) any period during which he is receiving relevant training, and

(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement’.

The main regulations employers need to be aware of:

  • Maximum weekly working time

Employees have the statutory right not to be compelled to work in excess of an average of 48 hours per working week. This includes any overtime worked. There is however an option to ‘opt out’ in which case an agreement should be made in writing to that effect. There is an active duty on employers to ‘take all reasonable steps, in keeping with the need to protect the health and safety of workers’ in ensuring that the average working hours per week are not exceeded. If an employee does agree to exceed the average weekly working hours then it is pivotal that employers keep up to date records. This is not only the legal requirement but is also good practice in order to protect the employer from any future dispute that may arise.

A breach of the employers’ duty to take ‘reasonable steps’ could give rise to a criminal sanction (as opposed to a sanction by the Employment Tribunal).

  • Daily rest and Weekly rest

Employers must give their workers a rest period of at least 11 hours consecutively per day and either 24 hours consecutive rest per week or 48 hours consecutively per fortnight.

  • Rest breaks

Employers must give their workers an uninterrupted period of 20 minutes unpaid rest for any daily working time which exceeds six hours. This uninterrupted rest should be taken during the working hours and not at the beginning or end of the worked period. The Regulations also provide reinforcement for ‘adequate rest breaks’ where ‘the pattern according to which an employer organises work is such as to put the health and safety of a worker employed by him at risk, in particular because the work is monotonous or the work-rate is predetermined’. Therefore employers should consider the work their workers are asked to perform and whether additional ‘adequate rest breaks’ should be taken.

  • Annual leave

Employers’ workers are entitled to a minimum of 28 days paid leave every calendar year and failure to do so can result in an Employment Tribunal claim.

Young workers

A ‘young worker’ is a worker between 15-17 years of age. The applicable rules for young workers differ slightly to those for adult workers:

  • A working day should not exceed eight hours and a working week should not exceed 40 hours. Employers must take ‘all reasonable steps’ to adhere to these rules in order to protect the health and safety of the worker. There is no opt-out option for young workers.
  • The daily rest entitlement is twelve consecutive hours and the weekly rest entitlement is 48 hours in every seven day period.
  • For working time of more than four and a half hours, a thirty minute rest break is entitled and this should be consecutive if possible.

Night Workers

A ‘night worker’ is someone who normally works at least three hours of his working time during the night (between 11pm and 6am). Young workers are not permitted to be night workers. Night workers should not work more than an average of eight hours in every twenty four hours. Further, where the work involves ‘special hazards or heavy physical or mental strain’, the worker should not work for more than eight hours in any 24 hour period during which the worker performs night work and this is not to be averaged out over a reference period.

Night workers are also entitled to a free health assessment before commencing night shifts and regular check-ups thereafter. The night work regulations cannot be opted out of.

What we can do for you

Regulation 29 provides that an employer who fails to comply with the regulations ‘shall be guilty of an offence’. As such, the employer will be liable for a fine. If a complaint to an Employment Tribunal is well-founded then the employer may be held liable for an award of compensation to be paid to the worker and in deciding the amount the tribunal will consider what is ‘just and equitable’ in the circumstances.  Thus, it is in the interests of employers to know their obligations and manage their employee working time to adhere to these.

As part of our employment services we can offer advice about the Regulations and draft bespoke employment contracts containing the working time in accordance with current statutory requirements.

For expert legal advice call now on: 0141 332 0915

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