The Working Time Regulations 1998 introduced, for the first time, rules of general application limiting working hours and providing for rest breaks and holidays.
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What are ‘workers’?
The WTR only protects “workers”, defined as all those working under:
- A contract of employment; or
- Any other contract whereby the individual undertakes to perform any work or services for another party to the contract, where the other party is not by virtue of the contract a client or customer of any profession or business undertaking carried on by the individual.
This includes employees, temporary workers and freelancers, but not the self-employed pursuing a business activity on their own account. The distinction will not always be clear. Special rules apply to individuals receiving training and also agency workers.
The Working Time Regulations do not apply equally to all workers. Some types of workers are excluded altogether. Others are excluded from certain rights but may be entitled to compensatory rest. Some sectors (such as aviation, road transport and merchant shipping) are outside the scope of the Working Time Regulations but working time for those sectors is regulated under separate regulations.
Meaning of ‘working time’ under the Working Time Regulations
Working time is defined as:
- Any period during which the worker is working, carrying out his duties and at the employer’s disposal (all three criteria must be met);
- Any period during which the worker is receiving “relevant training”;
- Any additional period which is agreed in a “relevant agreement” to be working time.
“Relevant training” means training for employment, work experience provided pursuant to a training course or programme, or both. However, it does not include work experience or training where the immediate provider is an educational institution or a person whose main business is the provision of training, and which is provided on a course run by that institution or person.
A “relevant agreement” could be contained in a collective agreement, a workforce agreement, or an individual written contract such as a contract of employment. A relevant agreement can only add to the categories of activity that might constitute working time. It is not possible to agree that time that would otherwise be working time under the WTR 1998 should not be treated as such.
The Working Time Regulations contain special provisions covering any person aged under 18 and over compulsory school age.
Time that is included in ‘working time’
- Paid overtime and some unpaid overtime (unless it is purely voluntary in which case the worker is arguably not at the employer’s disposal).
- Time spent waiting or “on call” at the workplace (or at another place chosen by the employer) even if the employee is allowed to sleep.
- Responding to telephone calls while on call.
- Travelling to incidents while on call. • Travel time where the travel is part of the job, such as travelling sales reps.
- Working lunches.
- Work taken home at request of the employer.
- Attending work-related training.
- Other time that is treated as “working time” under a relevant agreement.
However there may be exceptions. The test is whether the worker is working, carrying out their duties and at the employer’s disposal (unless they are receiving relevant training or there is a relevant agreement which defines the time as working time).
Time not normally included in ‘working time’
Rest breaks including lunch breaks and coffee breaks.
- Daily and weekly rest periods.
- Annual leave.
- Time spent “on call” if the worker is not required to be at a particular place.
- Travelling to the workplace, unless the travel is undertaken following “booking on” or reporting to an assigned depot or booking-on point.
- Attending work-related social events.
- Unpaid overtime undertaken voluntarily.
- Attending evening classes or day-release classes that are not a requirement of the job.
- Working from home voluntarily.
- Responding to telephone calls voluntarily out of hours, including when travelling
These activities will not normally be considered working time because the worker does not fulfil one or more of the criteria of working, carrying out their duties, and being at the employer’s disposal.
Travelling time
Non-statutory guidance suggests that time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers is included in working time. Other examples could include a solicitor travelling to court or to visit a client.
However, the guidance suggests that travelling outside of normal working hours is not included in working time.
Time spent commuting would therefore not usually be viewed as working time. Even if the worker uses some of their daily commute to carry out work-related activities such as making telephone calls or reviewing documents, the time would generally not be treated as working time.
In a recent case, the European Court of Justice (ECJ) held that for workers who are not assigned to a fixed place of work, the time spent travelling from their home to their first assignment, and from their last assignment back to their home, should constitute working time.
Rest periods and rest breaks
The working time regulations generally allows workers the following:
- A daily rest period of 11 hours’ uninterrupted rest per day
- A weekly rest period of 24 hours’ uninterrupted rest per week (or at the employer’s choice, 48 hours’ per fortnight)
- A rest break of 20 minutes when a day’s working time is more than six hours.
- “Adequate” rest breaks for workings carrying out monotonous work or where the work rate is predetermined where this can put the worker’s health and safety at risk.
- Young workers (workers who are aged under 18 but over compulsory school age) have greater entitlements to rest breaks than adult workers:
- Daily rest of 12 consecutive hours
- Weekly rest period of 48 hours
- Rest break of 30 minutes where daily working time is more than four and a half hours.
Shift workers
The provisions entitling workers to 11 hours rest per day and 24 hours rest per week (or 48 hours per fortnight) do not apply in relation to either of the following:
- Shift workers when they change shift and cannot take a daily or weekly rest period between the end of one shift and the start of the next.
- Workers whose duties involve periods of work split up over the day, such as cleaning or catering staff working split shifts.
If denied these entitlements, shift workers are entitled to “compensatory rest” wherever possible.
Autonomous decision-makers and unmonitored working time
Workers such as managing executives, those with autonomous decision-making powers, family workers or the clergy, who have control over the hours they work and whose time is not monitored or determined by their employer, are exempt from the following provisions:
Limits on average weekly working time
• Limits on the duration of night work.
• Right to daily and weekly rest breaks and periods.
• Need for their employers to keep records of these workers’ working time.
This is sometimes misinterpreted as a rule that those with managerial responsibilities are not covered by the Working Time Regulations. However, the exemption only applies where “on account of the specific characteristics of the activity in which [the worker] is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself” (regulation 20(1) Working Time Regulations 1998).
It will not therefore include ordinary line managers or supervisors or indeed anyone required under their contract to work certain “core hours” or to be at work for a specified length of time. Nor can it apply to those paid an hourly rate since this would not be consistent with their working time being unmeasured.
The 48 hour limit on average weekly working time
Where this limit applies, a worker’s average working time (including all overtime and time spent working for others) must not exceed 48 hours per week. An employer must take all reasonable steps, in keeping with the need to protect health and safety, to ensure that this limit is complied with. Failure to do so is an offence punishable with a potentially unlimited fine.
Workers are allowed to work more than 48 hours a week as long as the overall weekly average measured over the appropriate “reference period” (by default, 17 weeks) is 48 hours or less.
For young workers (those over the compulsory school age but under 18) there are more stringent daily and weekly limits. They cannot work more than 8 hours in any day or 40 hours in any week. There are no averaging provisions for young workers.
Reference periods
Employers need to have a reference period over which the average working time can be calculated. This is a rolling period consisting of the 17 weeks prior to the calculation date unless an exception applies.
Nothing in the regulations expressly requires that hours worked for different employers be aggregated for the purposes of calculating average weekly working time. However, the government guidance interprets the legislation as requiring all working time to be counted, not just time for a particular employer.
Therefore, employers should ask workers if they work for anyone else in order to avoid breaching the legislation.
Opting out of the 48-hour week
The limit on average working hours does not apply if the employer has “obtained the worker’s agreement in writing” to perform work in excess of the limit. This is generally referred to as an “opt-out” agreement. A worker can cancel the opt out by giving at least seven days’ notice unless the opt-out agreement provides for longer notice (which cannot exceed three months).
Employers must keep records covering at least the last two years showing which workers have opted out.
Failure to take reasonable steps to comply with the limits on working time or the record keeping requirements will render the employer guilty of an offence, and liable to prosecution and a fine.
Relevant agreements
The Working Time Regulations enable employers to modify or exclude some of its provisions by negotiation with workers or their representatives.
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
