The Working Time Regulations 1998 (the Regulations) implemented the requirements of the 1993 EC Working Time Directive. Before the Regulations came into force, the hours of work undertaken by employees were largely unregulated in the UK. For the first time, the Regulations introduced restrictions on the number of hours worked by employees and workers together with a right to rest breaks and holidays. This post covers only the restrictions on the maximum working week.

Who is covered by the Regulations?

The Regulations apply to “workers”. A worker is defined as an individual who works under either a contract of employment or a contract personally to do or perform work or services for another, provided that the other is not a customer or client of a profession or business undertaking carried on by the individual.

This definition therefore includes employees but also extends to other workers engaged other than in the capacity of an independent self-employed contractor.

What is working time?

The concept of “working time” is relevant to average working time, rest periods and rest breaks. “Working time” is defined as any period during which the worker is:

  • working, carrying out his duties and at the employer’s disposal; or
  • receiving “relevant training”.

In addition, working time includes any other period agreed between the parties in a relevant agreement (for example, the employment contract or a collective agreement) to be working time. However, the parties cannot agree to exclude from the definition of working time any period which is included under the Regulations.

In addition to a worker’s usual working hours, this definition will normally include paid (and some unpaid) overtime; time spent “on call” at the workplace (or another place chosen by the employer) even if the worker is allowed to sleep, travel time where travel is part of the job (such as for sales reps), working lunches and attending work-related training courses.

However, it will not normally include rest breaks, holidays, attending work-related social events, unpaid overtime undertaken voluntarily, working from home voluntarily or attending evening classes which are not a requirement of the job.

What is the maximum working week?

Unless one of the exemptions applies (see below) 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 to ensure this limit is complied with.

Exemptions

Exemptions include workers who have validly “opted out” (see more below), domestic servants employed in a private household, workers with unmeasured time (see more below), mobile road transport workers and the armed forces, the police and emergency and civil protection services.

Opting out of the 48-hour week

The limit on the average working week does not apply if the employer has obtained the worker’s written agreement that the limit shall not apply. The opt-out agreement can last for a fixed period or indefinitely and the worker can withdraw his agreement on 7 days’ notice unless a longer period is agreed (which cannot exceed 3 months).

However, even where there is an opt-out agreement, employers need to be mindful of their duty at common law to protect the health and safety of their workers and ensure that they do not work such long hours that there is a risk to health and safety.

It is unlawful to pressurise workers to sign an opt-out or to dismiss or subject them to any other detriment for refusing to sign an opt-out or for opting back in. However, it is not unlawful to refuse to employ someone who will not opt out.

Unmeasured working time

Workers whose working time is not measured or decided by their employer, such as managing executives or others with autonomous decision-making powers, are exempted from the limit on the maximum working week.

This exemption is quite narrow and does not cover all workers with managerial responsibilities, such as ordinary line managers or supervisors, or indeed anyone contracted to work certain core hours or to be at work for a specified period of time.

Enforcement and remedies

Failure by an employer to take all reasonable steps to ensure that the limit on the maximum working week is complied with is an offence punishable with a potentially unlimited fine.

Workers will also have the right to bring a claim in the tribunal if they have been dismissed or subjected to any other detriment for refusing to work in excess of the maximum working week.

 

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