The Working Time Regulations 1998 lay down detailed rules on:
The Regulations give additional protection to young workers under 18 (employee characteristics ).
The requirements of the Regulations are summarised here, but companies who need more detailed guidance should contact their Association. The Department of Business and Regulatory Reform has also produced guidance on complying with the Regulations ( Working Time Regulations 1998 ).
The Regulations apply to more people than just employees. They also apply to other workers who have a contract to carry out work for a company personally, unless they are contracting with the company in the course of their profession or business. The Regulations will therefore cover many casual workers, self-employed labourers and homeworkers who are not employees. Those who are receiving work experience or training are covered even if they are not company employees, unless the work experience or training is being provided on a course run by an external trainer or educational institution. The Regulations therefore apply to those on National Traineeships or participating in the New Deal. Agency workers are also covered, but in this case the agency is likely to be responsible for ensuring that the Regulations are applied, rather than the company that is using the agency workers.
In some cases where workers are excluded from the Regulations, they must be given 'an equivalent period of compensatory rest'. The compensatory rest must be a continuous period and should be given as soon as practicable, rather than being accumulated. Where, in exceptional circumstances, it is not possible for objective reasons to give a worker compensatory rest, the employer must take 'appropriate' steps to protect the worker's health and safety. It is unclear what this means. The Health and Safety Executive suggests that it could in some cases involve changing or restricting the worker's duties.
The requirements of the Regulations in relation to holidays, rest breaks and rest periods are expressed as entitlements. If a worker freely chooses not to take up these entitlements, the employer is not acting unlawfully. On the other hand, it is a criminal offence for an employer to fail to comply with its obligations in relation to limits on working time, and night work and health assessments for night workers.
It is unlawful for an employer to put a worker under any form of disadvantage for asserting or exercising his or her rights under the Regulations. Further, it is automatically unfair for an employer to dismiss a worker or select an employee for redundancy for that reason, regardless of the employee's length of service.
An employer must keep adequate records to show that it has complied with the weekly working time and night work limits and the requirement to provide health assessments for night workers. This includes keeping a record of those workers who have 'opted out' of the 48-hour working week. These records need to be available to the Health and Safety Executive and the local authority, which enforce these parts of the Regulations. In many cases, records kept for other purposes, such as pay records for hourly-paid workers, will be adequate to show compliance with the working time limits. Although the Regulations require records to be retained for only two years, employers may want to retain them for at least three years, in case they are needed to defend a personal injury claim.
For the purposes of the Regulations, working time includes any period during which a worker is working, at the employer's disposal, and carrying out his or her activity or duties.
Time spent travelling may count as working time where this is part of the job, but travelling between home and work does not. 'On call' time counts as working time if the worker is required to be at the workplace during that time. However, 'on call' time does not count if the worker is not required to be at the workplace and is free to carry out other activities unless and until called upon to work. Time when the worker is receiving work experience or training counts as working time, except where it is provided on a course run by an external trainer or educational institution.
Various groups of workers are excluded from some parts of the Regulations. For example, some, but not all, drivers are covered by some aspects of the Regulations. (The rules on drivers' hours are complex, and differ according to the type of vehicle that is being driven - your Association can provide details.)
Workers whose working time is not measured or predetermined or who can decide the length of their working time themselves, are covered only by the Regulations' requirements relating to annual holiday, night work assessments and workers under 18. For example, senior managers who are genuinely free to decide when and how long they work are excluded from most of the Regulations.
The Regulations' requirements on night work limits, daily and weekly rest periods and in-work rest breaks for adult workers do not apply to these categories of workers:
- Workers whose activities are such that their home is distant from their workplace, or who have different places of work that are distant from each other.
- Workers involved in security and surveillance work, where a permanent presence is required to protect property and people.
- Workers involved in activities that require continuity of service or production, including industries where workers cannot interrupt their work on technical grounds.
- Where there is a foreseeable surge in activity.
- Where the worker's activities are affected by an unusual or unforeseeable occurrence beyond the employer's control, or an exceptional event that could not have been prevented by the employer taking proper care, or an accident or the imminent risk of an accident.
Nevertheless, these workers must usually be given a period of compensatory rest that is equivalent to the in-work rest break or daily or weekly rest that they have not received. In exceptional cases where it is not possible for objective reasons to allow the workers compensatory rest, they must be given appropriate protection for their health and safety.
Employers have some flexibility in the way in which they implement the Regulations. Certain details can be fixed through collective bargaining with an independent trade union, or through a 'relevant agreement' or a 'workforce agreement'.
A relevant agreement is a written, legally binding agreement between the employer and the worker (such as a term in a worker's written contract of employment), a collective agreement that is incorporated into the worker's contract (incorporating terms ) or a workforce agreement.
A workforce agreement is a written agreement signed by elected representatives of the workforce. In order for the agreement to be valid, the representatives must have been elected in a specified way. If an employer has 20 or fewer workers, it has the alternative option of reaching a workforce agreement with a majority of its workforce, rather than elected representatives. A workforce agreement can last up to five years. A workforce agreement cannot cover workers whose terms and conditions are provided for in a collective agreement. Because of the detailed requirements that apply to workforce agreements, a company that is considering entering into one should contact its Association for advice.