Working Time Regulations

Regulations derived from the EU working time regulations require employers to provide paid statutory holiday (SH) for all employees and also control the maximum hours employees are able to work (and/or work without breaks) both overall and at night.

Paid Holiday Entitlement

All employees are entitled to 4 weeks SH within each holiday year. The allocation is reduced proportionately for those who do not work the whole year (e.g. start after its commencement and/or leave before its end). Those who work part-time are similarly entitled related to the hours they actually work (i.e. if they only work 2 hours a day then a 'day's' paid holiday is 2 hours).

Where an employer grants paid holiday on a contractual basis the first 20 days (which can include paid Bank Holidays) is counted as SH. (SH is not required to be an addition to the existing entitlement, provided the latter is of at least 4 weeks duration.) If employees leave before the completion of a holiday year then the entitlement needs to be apportioned and an amount paid in respect of the balance due (less any leave taken). This is the only time that a payment can be made in lieu of SH. SH can neither be carried forward to a following year nor drawn forward from a following year.

An employee seeking to take SH must give the employer notice which is twice the length of the leave (i.e. if 5 days leave is required, 10 days notice must be given) - although these minimum notice periods can be extended if an agreement is entered into.

Employers can agree with employees that should an employee take paid holiday in excess of their entitlement, they can be required to 'repay' the excess (either by cash or additional unpaid work). An employer can, with notice, require an employee to take SH at a set time.

Coverage

Whilst the rules are fairly straightforward, problems of entitlement have emerged. It seems it is not only employees who can claim paid holiday.

Guidance re the use of 'rolled up rates' to pay for holiday is set out in HOLIDAYS.

Restrictions on Working Time

Although there are a number of types of work where derogations (exceptions) to the Regulations are allowed (e.g. doctors in training, who must be brought within the existing regulations by 2010), the armed forces, fishermen and those working at sea) generally these restrictions cover all types of work except:

• managing executives;

• those with autonomous decision-making powers where they can make their own decision regarding the number of hours worked (e.g. the self-employed), family employees; and

• those engaged on religious activities.

Those affected must not work more than 48 hours a week (a figure which is averaged over a 17 week period - although in consultation employer and employees may agree a different period).

The figure of 48 hours is a personal one and thus it is the number of hours worked by each person in each week which is being controlled. Employers might need to know whether their employees have other employment although if employees will not disclose this, there is little they can do about it.

However, employers and employees can agree to contract out of the regulations and if so, any such agreement must be:

1. individually agreed (i.e. opting out of the 48 hour rule is not subject to collective bargaining or agreement);

2. in writing;

3. subject to a 3 month notice period;

4. backed by records identifying each employee that agreed to opt out.(The employer needs to be able to provide information of the total number of hours (subject to a two-years maximum) worked by the employee.); and

5. made available for inspection by inspectors of the Health & Safety Executive or other body.

Although applicants for employment could be pressurised to sign an opt out, any pressure placed upon employees to sign is illegal (and of course, once an applicant joined the employer they could give 3 months notice to stop working in excess of 48 hours. Should sanctions be imposed on any employee refusing to sign (or wishing to stop working in excess), the employee has a right of access (irrespective of service) to tribunals. A dismissal in such circumstances will be automatically unfair.

In summer 1999 the UK Government relaxed two of the rules regarding the 48 hour week limitation:

• The requirement to keep records of the hours worked by those who have signed individual opt-outs is to be dropped.

• Those who work more than the 48 hour limit of their own volition and without payment can do so without signing an opt-out.

Other Controls

Whilst the 48 hour limit applies to the overall number of hours to be worked in a week, there are a number of other limits which need to be observed:

1. Workers are entitled to 24 hours off in each 7 day period, or 48 hours off in a 14 day period.

2. Workers aged under 18 are entitled to 48 hours off in each 7 day period.

3. Workers are entitled to 11 hours consecutive rest in each 24 hour period .

4. Workers aged under 18 are entitled to 12 hours consecutive rest in each 24 hour period.

5. Night workers are limited to 8 hours work in any 24 hour period, and must be offered free health assessments both before commencing night work and regularly thereafter.

6. Where someone works more than 6 hours, at least a 20 minute rest break must be provided.

7. Those aged under 18 are entitled to a 30 minute rest break if they work more than 4.5 hours.

8. Where employees are engaged on monotonous work or their workrate is pre-determined (e.g. their work pattern is machine driven and they have no control over the speed of the machine) they are entitled to 'adequate rest breaks' at more frequent intervals than the above.

In the event of an emergency or force majeure, then the above limits can be ignored - as indeed in practice most of them are.