Employers have a legal obligation to monitor and manage the amount of hours their employees are working and to ensure they have sufficient rest breaks.
In this guide we will outline those responsibilities and also look at some frequently asked questions.
The Working Time Regulations (WTR) 1998 was introduced in order to regulate hours of work, set provisions for rest breaks and annual leave. The regulations are concerned primarily with the health and safety of the workforce and are rigorously enforced, leaving employers vulnerable to penalties for failing to comply.
What is working time?
Our article on Travel Time introduced the WTR and briefly outlined what is meant by ‘working time’ working time is classed as any period where during which someone is:
- Working (unsurprisingly!)
- Carrying out their duties
- At their employer’s disposal
- Any period during which relevant training is being received, i.e., receiving training relevant to their employment such as attending a training course
- Any additional period which is agreed in a relevant agreement to be working time i.e., as set out in the contract of employment or a collective agreement.
Is there a limit on the number of hours an employee can work?
Yes. The weekly maximum hours should not exceed 48 hours a week.
I had a contract with a deadline brought forward and my staff agreed to work extra hours, they must have worked 60 hours per week over the past month. Have I broken the law?
Not necessarily. Employees cannot be ‘forced’ to work over their contractual hours and certainly not over the 48 hour per week maximum, however the average working week for the purposes of calculating whether a WTR breach has occurred is based on the total working hours over a 17 week reference period.
So in this example, a couple of weeks of working over 48 hours will not constitute a breach of the regulations, as long as the average weekly hours over the coming 17 weeks do not exceed 48.
I often rely on my staff working overtime to fulfil orders. I pay them a decent overtime rate but they will often work over 48 hours a week. Do I have to scrap the overtime and employ more staff?
No. You will need to ask your staff to sign an opt-out agreement. This is where an employee can choose to ‘opt-out’ of the 48 hour working time limit.
Employees cannot be forced to sign one of these agreements and should not suffer any detriment for refusing to do so.
REMEMBER- a verbal agreement is not worth the paper it isn’t written on! You will need this agreement to be set out in writing. Our experts are on hand to provide you with bespoke wording for such agreements. Don’t leave it to chance.
Please see our ‘What’s in the News?’ section on the newsletter for a court of appeal ruling relevant to holiday and overtime.
How many breaks are staff entitled to?
If someone works for 6 hours or more they are entitled to a break of at least 20 minutes.
There must also be 11 consecutive hours of rest in a 24 hour period and at least one day off each week or two consecutive days off in a 2 week period.
I have an employee who wants to leave early by not taking their break and effectively ‘tagging it on’ to the end of their shift. Is this ok?
No. If their shift is 6 hours or more, their break must be an ‘in-shift’ break.
If their contract provides for additional breaks then there is nothing to stop you agreeing to them sacrificing their additional break or a portion of their lunch hour, to allow them to leave early.
I offer my staff a 1 hour lunch break and two 15 min breaks. This is too much, can I scale this back?
These arrangements are likely to be contractual, whether they are specified in the contract itself or have become implied contractual terms via custom and practice over a period of time. If you suddenly stop these breaks and revert to the legal minimum, this may constitute a breach of contract and is not advised.
If however you do wish to make changes to the allocation of breaks our experts can discuss with you whether you have a business case to make these changes following a period of consultation with your staff.
Are these breaks paid?
As we saw in the last article on travel time, the WTR do not legislate in respect of pay. So whether these breaks are paid or not will depend on the contracts of employment and what is customary within your business.
I have 16 and 17 year olds working for me. Are they entitled to additional breaks?
Yes.
Those under the age of 18 and over the school leaving age are classed as ‘young workers’ and the below applies, without exception:
- Cannot work for more than 8 hours a day
- Cannot work for more than 40 hours per week
- A 30 minute break if their shift is 4.5 hours or above
- They must have two days off per week
Does any time spent being on-call count towards working hours?
Yes and no.
If they are on-call but can carry out their leisurely activities and are not restricted in terms of where they can go, the only part of being on-call which will be classed as working hours is likely to be the actual time they are called upon to carry out any work.
If they are expected to remain at their place of work or are required to remain within a certain distance from work- they are ‘at your disposal’ for the entire time period even if they are not actually called upon to carry out any work activities. This will count as working time.
It’s often a bit of a grey area and therefore it is important you seek advice from our experts as to what constitutes working time in these types of situations.
I have employees who work overtime or may be ‘on-call’. They are not free to pursue their own leisurely activities so I am comfortable with understanding that this time is to be recorded as working time and usually the following working day would be a day off for them.
However, an employee has just called in sick so I am short staffed. Am I prevented from allowing someone who has not had an 11 hour rest period between their shifts to cover?
This is where compensatory rest comes in.
This permits someone to work during a period where they should be resting as long as they receive a minimum of 90 hours rest in average each week.
This would apply not only in the scenario above but to those who are required to provide a continuous presence or service, such as those in the caring professions or security.
And finally…Holidays
In addition to in-shift breaks, daily and weekly rest, employers must provide their workforce with a minimum of 5.6 weeks (28 days) paid holiday per year, pro rata for part-time staff.
Our next article will look at your obligations in terms of annul leave, plus all the puzzling little nuances which give employers a headache.
In the meantime, make sure that you are not the employer who is named and shamed for breaching the working time directive. Not only is this dangerous and unlawful but it can be counterproductive to the effective running of your business if your workforce are not properly rested.
Our experts are happy to assist you on this and any other Employment law/HR query you may have.
Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935
