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This fact sheet provides a brief explanation of the main provisions of the Working Time Regulations 1998 (as amended) (WTR). For further information and more detailed guidance, see Working Time Regulations Factsheet [FS19.02].
The WTR provide basic entitlements for workers to rest breaks, rest periods and annual leave, and provide limits on working time. The WTR implement the Working Time Directive.
In summary, the WTR impose the following obligations on employers:
- 20 minutes when working more than six hours per day;
- 11 hours uninterrupted rest per day;
- 24 hours uninterrupted rest per week (or 48 hours uninterrupted rest per fortnight);
The protections in the WTR do not apply equally to all workers. Some groups are given special protections, such as young workers and night workers. Others are exempt from some or all of the protections.
A worker is someone who either works under a contract of employment or who works under another contract, whether express or implied, and whether oral or in writing, whereby the worker undertakes to personally perform work for the other party whose status is not that of a client or customer of any profession or business undertaking carried on by the worker. This definition would include the majority of agency and freelance workers. It also includes members of limited liability partnerships (LLPs). The WTR do not apply to the genuinely self-employed.
“Working time” is defined as any period during which the worker is working, carrying out his/her duties, and is at the employer’s disposal; or is receiving “relevant training”, or any other period which is agreed in a relevant agreement to be working time.
The following activities therefore fall within the definition of working time:
The following activities are not normally included in the definition of working time:
Adult workers cannot be required to work for more than 48 hours a week on average. Average weekly working time is normally calculated over a 17-week reference period.
Adult workers can agree that this limit on average weekly working hours does not apply to them. In this case, an opt-out agreement must be signed by each individual worker.
For a sample opt-out agreement, see 48-Hour Opt-Out Agreement TP19.01.
It is also unfair to dismiss a worker or subject them to a detriment for refusing to sign an opt-out agreement or for cancelling one that has been signed.
A night worker is someone who usually works at least three hours between 11pm and 6am.
The limit on night work is an eight-hour average limit on a night worker’s normal hours of work per day. Again, nightly working time is averaged over a 17-week reference period. The reference period can be longer if agreed in a collective or workforce agreement.
Where a night worker’s work involves special hazards or heavy physical or mental strain, there is an absolute limit of eight hours on the worker’s working time each night. This cannot be averaged. Work is regarded as involving special hazards if it has been identified in a collective or workforce agreement as such, or if a risk assessment has identified the work as posing a significant risk to workers’ health and safety.
All night workers are entitled to a free health assessment before starting night work and at regular intervals thereafter. This can be done by the completion of an initial health questionnaire then referral to a doctor if necessary. A night worker is entitled to be transferred to day work on request if they have medical evidence indicating that night work is affecting their health.
If a worker is required to work for six hours or more, they are entitled to a continuous, uninterrupted rest break of at least 20 minutes. There is no requirement in the WTR for rest breaks to be paid, however, a contract may provide for paid breaks.
Workers are entitled to 11 hours' uninterrupted rest in every 24-hour period. They are also entitled to 24-hours’ uninterrupted rest in every seven-day period, or to 48-hours’ uninterrupted rest in every fortnight.
Employers should pro-actively ensure that the working arrangements they put in place for workers allow them to take the rest to which they are entitled. Workers can choose to work through a rest break or a rest period, but employers must not require workers to do this, nor subject them to detriment if they choose to take the break rather than work. If a worker chooses to work through a rest break or rest period, there is no obligation on the employer to provide compensatory rest, but the employer remains responsible for ensuring that this does not subject the worker to any risk to their health or safety.
For information on entitlements to annual leave and the calculation of holiday pay, see Annual Leave Overview FS21.01 and Calculating Holiday Pay FS21.03.
Additional protections apply to young workers (i.e. those over minimum school leaving age but under 18 years of age).
Young workers cannot work for more than eight hours a day or 40 hours a week. These are strict limits and hours cannot be averaged out over a reference period and there is no opt-out available. The total number of hours should be aggregated where the young worker works for more than one employer.
Young workers are entitled to a continuous uninterrupted rest break of at least 30 minutes if they are required to work for 4.5-hours or more.
Young workers are entitled to 12 hours' rest between each working day and to two days off a week.
Young workers cannot work at night between 10pm and 6am, or between 11pm and 7am if the contract of employment provides for work after 10pm. However, there are exceptions if there is no adult worker available due to unforeseen circumstances.
This prohibition on night work for young workers is varied for certain sectors. Provided that the employer requires the young worker to undertake work which is necessary to maintain continuity of service or production or is to respond to a surge in demand, and no adult worker is available to perform the work and undertaking the work would not adversely affect the young worker’s education or training, the prohibition only applies between the hours of midnight and 4.00am, for the following sectors:
Employers and workers can agree that the limits on night work, rights to rest breaks and rest periods may be varied, with workers receiving compensatory rest instead. They may also agree to extend the reference period for calculating average weekly working hours for the purposes of the 48-hour limit up to 52 weeks (if there are objective, organisational or technical reasons justifying such an extension), and add additional activities into what is defined as working time. These changes can be made by entering into a collective agreement (between the employer and a trade union) or a workforce agreement. See Working Time Regulations Factsheet [FS19.02] for further information.
Employers must ensure that they do not subject workers to a detriment because the worker:
Employees who have been subjected to detriment can lodge a claim in the Employment Tribunal.
Equally, it will be an automatically unfair dismissal to dismiss an employee where the reason or principal reason for the dismissal is one of the matters above. This right applies regardless of the employee’s length of service.
The obligations on employers under the WTR can be enforced by individuals via the Employment Tribunal and also by the Health and Safety Executive, who can impose criminal penalties.
Employment Tribunals will enforce the entitlement to rest breaks, rest periods and paid annual leave on behalf of workers. Claims must be brought within three months of the alleged breach and, if successful, awards of compensation may be made, based on any losses suffered by the worker.
The Health and Safety Executive and local authority environmental health departments can enforce the average weekly and nightly working limits and the obligation to maintain records. Employers who are in breach of these obligations can be subject to an unlimited criminal fine, and/or improvement or prohibition notices. Breach of an improvement or prohibition notice can result in an unlimited fine and up to two years’ imprisonment for directors.
This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures. If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist. ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.