The Working Time Regulations came into force in 1998 as the result of the need to implement the European Working Time Directive 1993. The main rationale for the legislation was to protect the health and safety of workers by ensuring that their working hours were limited and they had adequate rest breaks and annual leave. Special protection is also given to night workers and to young people under 18 years of age. However, some flexibility is built into the Regulations to allow employers to deal with exceptional circumstances or business activities that require particular patterns of work.
This guide will lead you through the main provisions of the Working Time Regulations and its application to the most common employment situations. The guide will focus on the statutory provisions in the Regulations unless specified. More detailed advice on any aspect of the Regulations should be obtained from your HR Rely advisor.
Since the introduction of the Regulations in 1998, various amendments have been made and the future of the Regulations is constantly under review with changes being considered.
Weightmans provides regular e-alerts and newsletters to help you keep abreast of any changes as they occur.
The Regulations apply to “workers” which encompasses the following individuals:
Some categories of worker are excluded from some aspects of the Regulations. These are:
If you have any of these types of workers in your organisation, you should seek specific advice from your HR Rely advisor on which aspects of the WTR apply as, for example, those with unmeasured time are still covered by provisions for annual leave and night work assessments.
Working time is defined as:
Some periods of time are, however, excluded:
'Stand by' or 'on call' is the term given to time spent waiting for a possible call out to perform duties. Typically an organisation which requires this will roster staff to be on call or standby for a certain amount of time each week/month/year. If a call out is made, then the time taken to perform the duties (including travel) will count as working time. However, how do you treat the 'waiting' time?
'On call' time has proved particularly problematic for courts to define and a number of cases have been referred to the European Court of Justice (ECJ) for clarification. As a result the European Commission has recommended that the Working Time Directive be amended to include the following principles:
Neither of these principles has yet been adopted, but it is likely that in a dispute over whether 'on call time' or 'stand by' is working time, these principles will be relevant. On call time, where an employee is undertaking duties, will be classed as working time, as may some or all of inactive call time (particularly where someone is restricted during this time).
In the important case of Royal Mencap Society v Tomlinson-Blake, the Supreme Court held that time where a worker is asleep (for example, in a care setting) will not count as working time. Only time where the worker is 'awake and available for work' will be counted.
It should be noted too that currently on call time does not count as a rest period and periods of compensatory rest must be provided. If you have any specific issues about on call or stand by, you should contact your HR Rely advisor for further assistance.
This limit applies to all workers, unless they are in an exempt category. The Regulations provide that a worker shall not work more than an average of 48 hours per week (this includes overtime and time spent working for other employers). Employers have a duty to ensure this limit is adhered to and the time must be measured over a reference period of 17 weeks (unless it is amended by a collective or workforce agreement).
Some workers are excluded from the 48hr maximum, as follows:
Employers must take reasonable steps to ensure that workers are not exceeding the 48 hour limit and this includes making enquiries about other work activities that an individual may be carrying out which may add to their total working time. A letter of enquiry should be sent to workers who you think may have other work. If a worker is carrying out other work activities, they should be asked to consider signing an opt-out form or reducing their hours in order to comply with the 48 hour limit. Some employers include a clause in their contract or handbook requiring a worker to declare or even seek permission to undertake additional external work.
The default reference period is a rolling period of 17 weeks. However, this period can be amended in certain circumstances:
There is an automatic extension of the reference period of up to 26 weeks for special case workers engaged in continuous activities.
In order to calculate a worker’s average weekly time, the employer should add together all working time (including overtime) undertaken by the worker in the previous 17 weeks and then divide that sum by 17. The formula used in the WTR is as follows:
(A + B) / C where:
A = the hours actually worked in the reference period;
B = the hours worked in the number of days added on to the reference period equal to the number of excluded days from the reference period; and
C = the number of weeks in the reference period.
B takes account of days which cannot be counted in the reference period, such as sick leave, family leave, days covered by an opt-out, statutory annual leave and work for third parties. Additional days, therefore, need to be added on to make up the full reference period.
Employers must ensure that they keep adequate records of working time for a period of two years to show that the maximum time limits are being adhered to. The Health and Safety Executive is responsible for monitoring the limits on working time and may issue prohibition or improvement notices for non compliance. Local authorities also have the power to issue such notices.
If a particular worker does not wish be limited to the average 48 hours per week they may sign an 'opt out' form. If you are aware that some workers are likely to exceed the limit you should ask them to consider signing an opt-out form. The worker’s decision must be an individual one, in writing and be voluntary (collective opt-out agreements are not possible). It is unlawful (contrary to the Employment Rights Act 1996) to dismiss a worker or subject them to a detriment for refusing to sign an opt-out form or for opting back into the 48 hour limit if they change their mind. Opt-out forms must contain a provision allowing a worker to give notice to end the agreement; the maximum notice that a worker can be required to give is 3 months. Employers must keep an up to date of list of who has opted out to be available for inspection. A model opt-out form is available for download [model opt-out letter].
It is possible to refuse to employ a worker if they do not agree to sign an opt-out prior to the commencement of their contract. However, this practice is frowned upon by the European Commission and trade unions who regard it as putting unfair pressure on a worker.
Whilst an employee is free to work longer hours once an opt-out is signed an employer should still observe their duty of care towards the employee and ensure that they do not work excessive hours if this creates a risk to themselves or others. The employer also needs to make sure that the entitlement to rest breaks is also adhered to (see below).
The Regulations provide entitlements to three types of continuous rest period which are as follows:
Breaks can be paid or unpaid depending on the contractual terms and conditions. The breaks are an entitlement and as such, it is theoretically the choice of the worker whether to take them or not. However, employers must ensure that workers are able to take their rest breaks and that there is no health and safety risk in them not doing so.
The rest break of 20 minutes applies only once per day, whatever the total length of the shift but it is advisable to give more breaks where the work poses a risk to health and safety such as monotonous or fixed routine work. The worker does not have to work six hours before he/she receives his rest, it is simply that the entitlement applies when a worker has a working day of six hours or more. The weekly and daily rest periods cannot overlap unless there is an objective, technical or organisational justification for this.
Exclusions from the rest break entitlements apply to those in excluded sectors, special case workers and those with unmeasured time. If a worker cannot take sufficient rest between the end of one shift and the start of another, or if they work 'split-shifts', the entitlement to daily and weekly rest does not apply; for example, in shift changeover situations. However, where rest breaks cannot be provided workers are entitled to 'compensatory rest'.
An employee may enter into an agreement with the workforce to vary the rest break entitlements of its workers, although equivalent compensatory rest will have to be given where appropriate.
Compensatory rest, like rest breaks, should be made available but workers do not have to take it. Employers must be careful to ensure that workers are not prevented from taking compensatory rest and that not taking it does not cause any health and safety risks.
Employers who try to prevent workers from taking breaks or victimise them for doing so are liable to claims being made against them.
Compensatory rest generally needs to follow these guidelines:
Records do not have to be kept of rest breaks or compensatory rest, but employers are advised, where possible, to keep records so that they can demonstrate they have given adequate compensatory rest, particularly for hazardous work.
In practice, many workers have longer periods of rest than that provided by the Regulations and, therefore, if their rest is interrupted for a short period, this is usually more than compensated for by the longer rest period overall. For example, many staff contracts allow for 48 hours of weekly rest in every 7 day period.
Workers who regularly carry out at least three hours work in a single shift at night time are classed as night workers. 'Regular' means in the normal course of their daily working pattern and 'night time' is defined as the hours between 11.00 pm and 6.00 am. The definition of night time work can be varied by collective or workforce agreement, but must include the hours between midnight and 5.00 am. Occasional night time working is unlikely to be regarded as night work, but those on rotating shift patterns will be covered even if, for example, they only work nights one week in three.
Workers who are classed as night workers must not work more than an average of 8 hours in each 24 hour period. For workers engaged in hazardous activities, the 8 hours is an actual limit and not just an average.
Calculation of the average must be done with reference to a worker’s normal working hours and is assessed over a 17 week rolling period. The following formula can be used:
A / (B – C) where:
A = normal working hours in the reference period;
B = the number of days in the reference period; and
C = the number of hours of statutory weekly rest divided by 24.
Except for work involving special hazards, the length of the reference period may be varied (so that the reference periods run consecutively) by a workforce or collective agreement.
'Normal working hours' can include overtime, if it is regular and required, but should not include annual leave, family leave, sick leave or other authorised leave.
Exclusions from the provisions on the length of night work (including hazardous work) apply to the following:
Workers in excluded sectors include certain sea-farers, fishermen, civil aviation workers and road transport workers. However, working time for these workers may be governed under separate regulations derived from sector-specific EU Legislation. If you have any questions about workers in these sectors, please contact your HR Rely advisor.
All night workers must be offered the opportunity for a regular free health assessment, see Health Questionnaire (Night Workers). Usually an annual assessment will be sufficient, but this depends on the nature of the work carried out. Medical advice should be sought if you are unsure about how regular the assessments should be.
The offer of a health assessment must be given to the worker before they are actually assigned to night work unless they have already been assigned to night work in the past (with the same employer) and they have had a previous opportunity for assessment.
Completed assessments should be passed to a medical practitioner for review as night work may pose a risk for workers with conditions such as diabetes, heart problems, stomach disorders, chest disorders, sleeping problems and those taking regular medication. If a worker refuses to undergo an assessment, you should keep a note of this on their record.
If a night worker is found to have health problems associated with night work (verified by a report from a GP or medical practitioner), the worker is entitled to be transferred to other suitable day time work, where possible. In practice, this may mean an organisation have to explore a swap with a worker from another shift if that allows the worker to transfer.
Remember that completed assessment forms are 'special category' data under GDPR and, as such, should be securely stored and only accessed by those who need access, such as HR personnel or occupational health practitioners.
All workers are entitled to 5.6 weeks annual leave per year (a year may be a calendar year or any other 12 month period specified in a relevant agreement). This right is a minimum amount of leave and many organisations allow further leave within individual contracts of employment. For a full time worker 5.6 weeks equates to 28 days and these days can include statutory bank holidays.
The entitlement is for 'paid time off' and this section will detail the various rules which employers and employees must observe in permitting and taking statutory leave. These rules will not necessarily apply to additional contractual annual leave over and above the 28 day legal entitlement unless your contracts stipulate this.
All workers should be given information about their holiday entitlements which should include:
Further information also should be provided in a holiday policy or staff handbook such as:
*Additional days for service should be applied with care due to the potential link to age, which could be regarded as discriminatory, e.g., favouring older workers who tend to have longer service.
Workers begin accruing holiday entitlement from the day they start work, which of course can be part way through a leave year. The employer should therefore specify in their contract how much leave they will have to take up to the end of the first leave year in which they are employed. Accrual is at the rate of one 12th of the entitlement per month rounded up to the nearest half day.
Strictly speaking the worker can only take the amount of leave they have accrued by the time they wish to take their holiday although, in practice, many organisations allow holidays of varying lengths throughout the year. However, if a worker leaves work and has taken more holiday than they have accrued, the employer can recover the excess holiday paid, providing there is a contractual right to do so.
As with new starters, leavers will only be entitled to take the amount of holiday they have accrued from the beginning of the holiday year to the date they leave work (at the end of their notice period). Those who have not been able to take their entitlement will be able to be paid in lieu (minus any holidays already taken).
Annual leave must be taken during the relevant leave year or it will be lost, as there is no provision in the Regulations for carry over unused holiday. However, recent developments in case law now mean that in specific circumstances, such as for those on sick leave or family leave who cannot take their holiday entitlement in that year, carry over of holidays should be permitted (see sections below). Employers should encourage workers to take their holidays and not do anything which deters or prevents a worker from taking their holiday.
The Regulations stipulate that each week of statutory annual leave must be paid at the rate of a “week’s pay”. Calculation of a week’s pay is set out in the Employment Rights Act 1996 and is explained in our guide to calculating a week’s pay.
In respect of holiday pay, calculating holiday pay, the calculation must include payments for overtime (whether compulsory or voluntary), commission payments, and any other allowance or payment that an employee regularly received which forms part of their 'normal remuneration'. These rules apply to the first 4 weeks of EU-derived statutory annual leave only, although many employers choose to apply the same calculation method to all periods of holiday.
If a worker takes more holiday than they are entitled to during a leave year, you may seek to recover the overpayment provided you have taken the following steps:
Payment in lieu of untaken annual leave is not permitted by the Regulations in any other situation than for a leaver, although payment may be made for any untaken contractual holidays in excess of the statutory entitlement.
“Rolled Up” holiday pay (often used in the past where a worker has erratic patterns of work) has been the subject of much legal debate and the current position is that it is unlawful even if the worker has agreed to this arrangement in their contract. If you operate a system of rolled up holiday pay, you should seek advice from your HR Rely advisor.
As a result of developments in the way the Working Time Directive has been interpreted, workers who are sick at a time when they had planned to take holiday, or who are prevented from taking holiday due to extended sickness can take their holiday at a later time (even if it extends into a new leave year).
Workers who are entitled to family leave (maternity, paternity, adoption, parental leave or shared parental leave) are still able to accrue their right to statutory leave through their family leave period. This leave will be in addition to their family leave. Under the Regulations, any accrued but untaken holiday is lost at the end of the year but this is not consistent with developments in European case law. For those on maternity or adoption leave, if their leave spans two holiday years and they have not been able to take their holiday entitlement before their leave commences, the employer may have to let them carry over unused holiday. This is because a woman who has taken maternity leave and loses holiday entitlement could complain of sex discrimination. Employers are advised to try and encourage those taking family leave to use their holiday entitlements before the period of leave but of course, if they subsequently leave the organisation, the employer may have to recover any overpayment. An alternative solution might be to agree to add on the annual leave to the beginning of the family leave period and then extend the return date to compensate for this.
This is unlikely to be a problem for a worker taking the statutory two weeks paternity leave or four weeks parental leave, but will apply to those able to take shared parental leave. Organisations who have fixed holiday periods will not be able to pay in lieu for these holidays or regard them as lost, where an employee has taken family leave.
In order to book a holiday, the Regulations stipulate that a worker must give his organisation notice of the intention to take holiday which is at least twice the amount of the holiday requested. For example, for a week’s leave the worker will need to give two weeks’ notice before the start of the holiday he intends to take. Part days would be counted as full days for the calculation of notice; for example, a holiday of three and a half days will require eight calendar days notice (2 x 4 days). The Regulations require the worker to set out the duration of the holiday requested and it is advisable that this is in writing, although this is not a legal requirement.
If the holiday is not convenient to the organisation (for example, during peak periods or because of short staffing at that time), you can give 'counter notice' to the worker that the leave must be postponed. The length of the 'counter notice' must be equivalent to the number of days of leave requested. For example, if a worker has given two days notice of their intention to take one day’s leave, the employer may give one day’s 'counter notice' to refuse the leave.
'Counter notice' cannot be given to postpone leave into another year or cancel the worker’s entitlement to leave by not allowing it to be taken at all, whatever the business reasons. Similarly, leave cannot be postponed to times which would normally be rest periods or non-working times. For example a part-time worker who works three days a week cannot be required to take leave on their two non-working days. For organisations that operate complex shift patterns, further assistance should be sought from your HR Rely advisor.
The Regulations also permit the employer to instruct the worker to take leave by giving them notice, which must be at least twice the length of the planned holiday and occur before the start date of the holiday period. For example a two week factory shutdown will require a minimum of four weeks’ notice calculated backwards from the first day of the holiday period. The Regulations do not require employers to consult with workers or to justify their reasons for fixing certain holiday periods, but it is of course always advisable to consider the views of workers when planning holidays and processing individual requests.
The provisions regarding notice can be varied or excluded in a collective or workforce agreement. This can include an agreement that workers take bank holidays as part of their statutory holiday entitlement.
For organisations that have the facility to make agreements with their workers, via collective bargaining with a recognised trade union or by negotiation with an elected employee body (for non unionised organisations), they can exercise some flexibility in applying the Working Time Regulations in a number of ways. However, certain clauses only are eligible for change – see below).
Collective agreements with a union must fall within the definition of a collective agreement as per the Trade Union and Labour Relations (Consolidation) Act 1992 in that they are made with an independent union who is not under the control of the employer. Workforce agreements on the other hand must fulfil the following criteria:
Oral agreements made with workers or arrangements which are merely communicated to the workforce will not be sufficient. If using a representative body in a non-unionised site, you should ensure that the representatives are properly elected and genuinely cover the whole of the workforce or the group affected. The representatives should also have the mandate (usually in a framework agreement) to cover the issue of working time. For example, they may not be suitable if they have only been elected to cover redundancy consultation. Furthermore, a workforce agreement which conflicts with a pre-existing collective agreement with a recognised union cannot be implemented. This also applies where there is conflict with terms of an individual’s contract.
Some of the clauses in the Regulations can be excluded or modified by a collective or workforce agreement. These clauses are:
Th term “Relevant agreement” is wider and can include written terms of a contract which could be legally enforceable. These can be used to make amendments to other provisions. The most common modifications include:
(Please note the above list is not exhaustive, as the full list contains special provisions for agricultural workers, offshore workers and junior doctors as well as some additional annual leave provisions. If you have any questions about a specific proposed change, please speak to your HR Rely advisor).
Under the Regulations, there is special protection for workers under 18 years of age. In particular, there are limitations on their working week as follows:
There is no facility to average their working hours over a reference period and there is no facility to allow young workers to sign an opt-out form.
There are some exceptions to these rules and, where they apply, the young worker is treated like an adult in that their working time can be raised to an average 48 hours per week and they may sign an opt-out. The exceptions are:
The rest periods given to young workers are as follows:
The daily rest period and weekly rest period may be interrupted where the work being done is split up over the day or of “short duration”, although this is not specifically defined in the Regulations. Similarly, the rest break of 30 minutes is to be given “where possible”, but if interrupted, i.e., because of an unforeseen event, compensatory rest must be given within 3 weeks. The weekly rest may also be reduced for technical or organisational reasons but to no less than 36 hours.
In addition to the rules for night work for adult workers, young workers are not permitted to work during the hours of 10.00 pm to 6.00 am or, if their contract requires them to work after 10.00 pm, between 11.00 pm and 7.00 am. Some exceptions apply (see the list of exceptions under 'working hours'). Young workers employed in specified sectors such as catering or postal work, for example, may only be precluded from working in the hours between midnight and 4.00 am if the work is required to maintain continuity of service, no adult worker is available and carrying out the work would not affect their education or training. For a full list of exceptions, please seek advice from your HR Rely advisor.
An employer must keep records to evidence the following:
These records must be retained for a minimum of 2 years from when they were made.
It is also advisable to be able to produce evidence that workers who have opted out are not working excessive hours and that rest periods are being observed, including compensatory rest.
Enforcement is carried out by either the Health and Safety Executive (HSE), a Local Authority Environmental Health Department or an employment tribunal depending on which part of the Regulations has been breached. In summary, the HSE or local authority will enforce matters relating to upholding working time limits (e.g., the 48 hour working week, night work and provision of rest breaks and compensatory rest) and employment tribunals will enforce failures to grant entitlements (e.g., for rest periods, annual leave and holiday pay) and provide remedy against detriment or dismissal.
A number of remedies may be applicable:
All workers are protected from detriment and employees are protected from dismissal for the following:
Note that dismissal that is wholly or mainly related to any of the above will be deemed to be automatically unfair and there is no service qualification for employees bringing a claim of detriment or dismissal.
Other types of claims may also be made such as:
If you consider that you may be in breach of any of the Regulations, you are advised to speak to your HR Rely advisor for specific guidance on the potential remedies that may apply and, more importantly, how you might amend your practices to ensure compliance with the Regulations.
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