h-Working Time – Secretcavemen.com

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The Working Time Regulations state that working time is when someone is ‘working at his employers disposal and carrying out his activities or duties’.

This can include:

working lunches such as business lunches
when a worker has to travel as part of their work, e.g. travelling salesmen
when a worker is undertaking training that is job-related
time spent abroad working, if a worker works for an employer who carries on business in Great Britain
time spent waiting at the place of work for work to be allocated
time spent working away from home, but not spent resting at the end of the working day, even if the worker is required to stay away from home overnight
time spent ‘on call’ at the workplace will constitute working time, while time spent ‘on call’ when away from the workplace and not carrying out duties, is not working time. Only the time spent during the actual provision of services when on call but away from the workplace will count as working time
if the worker is a home worker or carries out work at home with the prior agreement of the employer, then this is likely to count as working time.

It does not include:

routine travel between home and work
rest breaks when no work is done
time spent travelling outside normal working time
training such as non-job-related evening classes or day-release courses.

Legislation on working time

The Working Time Directive is the European Directive that brought the Working Time Regulations to the UK in October 1998.

The Working Time Regulations 1998

The Working Time Regulations (WTR) stipulate basic limits on working time and entitlement to periods of rest between working time, in-work breaks and to paid annual leave.

The Working Time (Amendment) Regulations 2002

These regulations came into force on 6 April 2003. They implemented restrictions on the working time of adolescents – those aged between 15 and 18, who are over compulsory school age, referred to as ‘young workers’ – and the circumstances in which they may work during night-time.

To view the full text of the above legislation online, please follow the links under Legislation.

A decision made in June 2008 by the EU Social Affairs committee has clarified the position in relation to the UK’s continued right to opt-out of the 48-hour maximum. While these have not yet been ratified by the full Parliament, the proposed changes are included in italics wherever possible in the following section, to keep you up to date.

Basic rights and protections

The basic rights and protections that the Regulations provide are:

a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose by written agreement to work more if they want to) – a new 60-hour weekly average limit measured over three months is currently progressing through Parliament. It is also proposed that workers will not be able to opt-out until they have worked for a business for at least four weeks.
a limit of an average of 8 hours work in 24 which night workers can be required to work
a right for night workers to receive free health assessments before commencing night work, and at regular intervals thereafter
a right to 11 hours rest a day
a right to a day off each week
a right to an in-work rest break of at least 20 minutes if the working day is longer than six hours
a right to a minimum of 4.8 weeks’ paid annual leave (inclusive of bank holidays). Workers have the right to paid annual leave from their first day of employment and it accrues at the rate of one-twelfth of the annual entitlement per month worked. A pro-rata entitlement is given to seasonal/casual employees and others who do not work for a full year, as well as to part time workers.
adequate additional rest breaks for workers whose pattern of work puts their health and safety at risk.

Employers’ duties under the Working Time Regulations

Record-keeping

There is a requirement for employers to keep records that show that the weekly working time limit is complied with. It is for the employer to determine what records need to be kept for this purpose.

They may be able to use existing records maintained for other purposes, such as pay, or can make new arrangements.

Checks on time worked

Employers need only make occasional checks of workers who do standard hours and who are unlikely to reach the average 48-hour limit.

However, they should monitor the hours of workers who appear to be close to the working time limit and make sure they do not exceed it. It is also proposed that they will have to monitor to make sure the weekly average maximum of 60 hours is not exceeded by staff who opt-out of the existing working time limit.

Employers must also keep an up-to-date record of workers who have agreed to work more than 48 hours a week.

Additionally, employers must keep a record of any nightshift health assessments performed and the outcome. These records must be kept for two years.

Rest periods

An adult worker is entitled to an uninterrupted rest period of not less than 11 consecutive hours (12 hours for young persons) in each 24-hour period.

Derogations from the regulations may be made with regard to shift work by agreement. However, in most cases, compensatory rest must be provided.

An adult worker is also entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period; or alternatively, if the employer so determines, either two uninterrupted rest periods (each of not less than 24 hours) in each 14-day period, or one uninterrupted rest period of not less than 48 hours in each 14-day period.

The entitlement to weekly rest is in addition to the 11-hour daily rest entitlement which must be provided, except where objective or technical reasons concerning the organisation of work would justify incorporating all, or part, of that daily rest into the weekly rest period.

[Certain professions are excluded from the above requirements. ]

Breaks

During the working day, an adult worker is entitled to a rest break if working more than six hours. Details of this rest break, including the duration, can be regulated by agreement, but if this is not achieved, the rest break will be for an uninterrupted period of not less than 20 minutes and there is an entitlement to spend that break away from the work station.

The break should be taken during the six-hour period (not at the beginning or end of it), but otherwise at a time to be determined by the employer.

Young persons are entitled to a break of 30 minutes if they work over 4½ hours.

Certain professions are excluded from the above requirements.

Nightshift working

Night time is the period between 11pm and 6am, though employers and workers can choose a different period. If they do, it must be at least seven hours long and include the period from midnight to 5am.

A night worker is someone who normally works at least three hours at night:

on most days worked
on a proportion of the days work which is specified in a collective or workforce agreement
often enough for it to be said that such hours are worked ‘as a normal course’.

Night workers should not work more than eight hours daily on average, including overtime, where it is part of a night worker’s normal hours of work.

Nightly working time should be averaged out over a reference period, which is usually 17 weeks. This period can be longer if agreed in a workforce or collective agreement. However, a night worker cannot opt-out of the night working limit average of 8 hours on night work every 24 hours.

Rest periods and breaks for nightshift workers

As workers must take at least two days off in every fortnight, this means that the average weekly limit for night working is 48 hours per week (6 days at 8 hours per day). No opt-out for this time limit is allowed.

Young workers may not ordinarily work at night between 10pm and 6am, or between 11pm and 7am if the contract of employment provides for work after 10pm. However, exceptions apply in particular circumstances.

Where a night worker’s work involves special hazards or heavy physical or mental strain, there is an absolute limit of eight hours in any 24 hour period working time each day – this is not an average.

Work will involve a special hazard if it is identified:

as such by agreement between an employer and workers in a collective agreement or workforce agreement
as posing a significant risk by a risk assessment which an employer has conducted under the Management of Health and Safety at Work Regulations 1999.

Mobile workers are excluded from the night work limits. Instead, they are entitled to ‘adequate rest’.

‘Adequate rest’ means that workers have regular rest periods. These should be sufficiently long and continuous to ensure that workers do not injure themselves, fellow workers or others and that they do not damage their health, either in the short-term or in the longer term.

For some workers, for example, security guards, caretakers and those doing jobs that cannot be interrupted, the Regulations restricting the length of night working to eight hours do not apply.

As with day workers, night workers are entitled to at least 20 minutes rest during any period of work lasting six hours or more.

Health assessments for nightshift workers

Nightshift workers are entitled to a free health assessment prior to commencing on nightshift, and the employer must offer regular health assessments to nightshift workers thereafter.

Employees do not have to take the opportunity to have a health assessment, but it must be offered by the employer.

These health assessments may be in the form of a questionnaire or, where necessary, a medical assessment.

Employers should get help from a suitably qualified health professional when devising and assessing the questionnaire. This could be from a doctor or nurse who understands how night working might affect health.

As with all health assessments, employers must keep a record of:

the name of the night worker
when the assessment was offered
when the assessment was carried out
the results of the assessment.

The health assessment should take into account the type of work that will be done, and the restrictions on the worker’s working time under the regulations.

New and expectant mothers, and young workers should also be given special consideration.

If an employee’s health is affected by night work they should, if it is possible, be offered alternative suitable day work.

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