Working Time Regulations Guide

More About The Application Of The Regulations

This section contains more information on:

  • Exceptions to the rules
  • Keeping records
  • Enforcement

More about exceptions to the rules

There are four classes of exceptions where some of the rules may not apply.

1 Agreements

In general, employers and workers can agree that the night work limits, rights to rest periods and rest breaks may be varied, with the workers receiving "compensatory rest" (see below). They may also agree to extend the reference period for the working time limits up to 52 weeks.

These agreements can be made by ‘collective agreement’ (between the employer and an independent trade union) or a ‘workforce agreement’. If a worker has any part of their conditions determined by a collective agreement they can not be subject to a workforce agreement.

A workforce agreement is made with elected representatives of the workforce in most cases (see below). A workforce agreement can apply to the whole workforce or to a group of workers. To be valid, a workforce agreement must:

  • be in writing;
  • have been circulated in draft to all workers to whom it applies together with the guidance to assist their understanding of it;
  • be signed before it comes into effect either; – by all the representatives of the members of the workforce or group of workers; or

    – if there are 20 workers or fewer employed by a company, either by all representatives of a workforce or by a majority of the workforce;

  • have effect for no more than five years.

2 Special circumstances

The night work limits (including the limit for special hazards), rights to rest periods and rest breaks do not apply where:

  • A worker works far away from where he or she lives (this includes offshore work). Or he or she constantly has to work in different places making it difficult to work to a set pattern.
  • The work involves security or surveillance to protect property or individuals.
  • The job requires round-the-clock staffing as in hospitals, residential institutions, prisons, media production companies, public utilities, and in the case of workers concerned with the carriage of passengers on regular urban transport services or in industries where work cannot be interrupted on technical grounds.
  • There are busy peak periods, such as may apply seasonally in agriculture, retail, tourism and postal services.
  • An emergency occurs or something unusual and unforeseen happens.
  • Where the worker works in rail transport and his activities are intermittent; he spends his time working on board trains; or his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.

In these cases, (except for the offshore sector) the reference period for the weekly working time limit is extended from 17 to 26 weeks. In addition workers are entitled to "compensatory rest".

What is compensatory rest?

"Compensatory rest" is normally a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed.

The regulations give all workers a right to 90 hours of rest in a week. This is the total of your entitlement to daily and weekly rest periods. The exceptions allow you to take rest in a different pattern to that set out in the regulations.

The principle is that everyone gets his or her entitlement of 90 hours rest a week on average, although some rest may come slightly later than normal.

3 Unmeasured working time

The working time limits and rest entitlements, apart from those applicable to young workers, do not apply if a worker can decide how long he or she works.

A test, set out in the regulations, states that a worker falls into this category if "the duration of his working time is not measured or predetermined, or can be determined by the worker himself".

An employer needs to consider whether a worker passes this test. Workers such as senior managers, who can decide when to do their work, and how long they work, are likely to pass the test. Those without this freedom to choose are not.

4 Partly unmeasured working time

There is an exception for workers who have an element of their working time pre-determined, but otherwise decide how long they actually work.

There is a test. This is that:

"the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work [in addition to that which is measured or pre-determined] the duration of which is not measured or pre-determined or can be determined by the worker himself".

Any time spent on such additional work will not count as working time towards the weekly working time or night work limits. Simply put, additional hours which the worker chooses to do without being required to by his employer do not count as working time; therefore, this exception is restricted to those that have the capacity to chose how long they work. The key factor for this exception is worker choice without detriment.

Some or none of a worker’s working time may meet the test. Any working time that does meet it will not count towards the 48-hour weekly working time limit or the night work limits.

This exception does not apply to:

  • working time which is hourly paid;
  • prescribed hours of work;
  • situations where the worker works under close supervision;
  • any time where a worker is expressly required to work, for example attendance of meetings;
  • any time a worker is implicitly required to work, for example because of the loading or requirements of the job or because of possible detriment if the worker refuses.

Who will it apply to?

No one can be forced to work more than an average of 48 hours a week against his or her will; this does not remove this protection from any worker. It applies to working time – it is not confined to any particular category of worker (with the exception that young workers are excluded), but applies where the specific characteristics (i.e. the nature) of their work meet the test set out above.

Some examples

The examples given are for illustrative purposes and do not provide an exhaustive list.

  • Worker A is paid by the hour. He occasionally works overtime, for which payment is made. The working time does not fall within the scope of this exception because it is measured.
  • Worker B‘s work is closely supervised. B is told what to do and when. B’s working time does not fall within the scope of this exception, as it is not determined by B.
  • Worker C‘s contract specifies that she is to work 42 hours a week, but she regularly works longer because the volume of work is greater than could be done in the time. The nature of her job means that C works to deadlines and has to complete her work. She cannot control the volume of the work. The extra hours do not fall within the scope of this exception because she is required to do the work.
  • Worker D‘s contract also requires a working week of 42 hours, but the volume of work coming to him is greater than someone could reasonably be expected to do in that time. However, he has discretion and a clear choice over how much work is done, how his work is done and how to meet his objectives, for example he can prioritise his tasks and so, if he chose to, he could limit his working week. Therefore, to the extent that he can limit them, the time worked beyond that required by his contract falls within the scope of this exception.
  • Worker E, whose contract requires a working week of 40 hours, works in an environment where colleagues habitually do a 12-hour day even though the work does not always necessitate such hours. Worker E works the long hours because she is lead to believe that her employer considers it unacceptable to work shorter hours. Therefore, the time does not fall within the scope of this exception because she is required by her employer to work the extra time.
  • Worker F has a managerial or professional role which allows him to decide how and when he works, chooses what is done, establishes priorities and determines the time and effort that are devoted to tasks. Time worked above F’s contracted hours will fall within the scope of this exception because he can determine the volume of his work.
  • Worker G for reasons of personal interest or self-motivation, chooses to go beyond the work that is expected of her, for example spending additional hours studying, thinking and reading about her work in addition to any formal employer-required training. Such time will fall within the scope of this exception because G determines the duration of the additional hours of work.
  • Worker H is a well paid sales representative who chooses to work beyond the hours necessary to meet her targets for reasons of personal motivation, for example additional commission. These additional hours will fall within the scope of the exception because H determines the volume of her work.3

More about keeping records

What records do employers need to keep?

If you are an employer, you need to keep records that show:

  • The weekly working time and night work limits are complied with in your business. It is for you to determine what records need to be kept for this purpose. You may be able to use existing records maintained for other purposes, such as pay, or you may need to make new arrangements.
  • You do not have to keep a running total of how much time workers work on average each week. How you monitor your workers’ hours depends on particular contracts and work patterns.
  • You need only make occasional checks of workers who do standard hours and who are unlikely to reach the average 48-hour limit. However, you should monitor the hours of workers who appear to be close to the working time limit – and make sure they do not work too many hours.
  • You need to keep an up-to-date record of workers who have agreed to work more than 48 hours a week, but you do not need to record how many hours they actually work.
  • You must offer regular health assessments to night workers. You should keep a record of: the name of the night worker, when an assessment was offered (or when he or she had the assessment if there was one) and the result of any assessment. Records must be kept for 2 years.
    More about enforcement

How are the regulations enforced?

Enforcement is split between different authorities. The limits and health assessment requirements (for night workers), are enforced by the Health and Safety Executive (HSE), local authority environmental health departments, the Civil Aviation Authority (CAA) and the Vehicle and Operator Services Agency (VOSA). The entitlements to rest and leave are enforced through employment tribunals.

Enforcement of employers’ obligations

The HSE enforce the limits and obligations to provide health assessments in factories, building sites, mines, farms, fairgrounds, quarries, chemical plants, nuclear installations, offshore installations, railways, schools, hospitals and in relation to mobile workers in road transport other than those referred to below i.e. employed taxi drivers and couriers. Enforcement will be in line with the Health and Safety Commission’s (HSC) Enforcement Policy Statement.

Local authority officers ensure the regulations are followed in shops and retailing, offices, hotels and catering, sports, leisure and consumer services.

CAA enforce the limits and obligations to provide a health assessment for night workers, in relation to a mobile worker who works in general aviation, including the general aviation corporate sector.

VOSA enforce the working time limits and health assessments if a night worker in relation to a mobile worker covered by:

  • the United Kingdom domestic driver’s hours code, which is set out in Part VI of the Transport Act 1968

VOSA also enforce the health assessments if a night worker, in relation to a mobile worker to whom one or more of the following applies:

  • Council Regulation (EEC) 3820/85 or
  • the European Agreement concerning the Work Crews of Vehicles engaged in International Road Transport (AETR) of 1st July 1970

Entitlements

If you are a worker and you feel you are not receiving your entitlements, we suggest you take the following steps:

  • Talk to your manager, you may be able to settle the matter straight away.
  • Contact a trade union representative (if you have one). They will be able to advise you what to do.
  • If you cannot resolve the matter, you can make a claim at an employment tribunal.

If you want to make a claim under the regulations, the Advisory, Conciliation and Arbitration Service (ACAS) will offer the services of a conciliator to help the employer and worker to reach a settlement without the need for a tribunal hearing. Part of the conciliator’s role is to explain how tribunals work and how a tribunal arrives at decisions. This service is free of charge.

If you want to take a complaint to a tribunal, you should do so within three months. The tribunals offer an informal way of ensuring that workers are given their rights. These tribunals generally have three members: a legally qualified chairperson and two other lay members who have experience of dealing with work-related problems.

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3 It should be noted that under National Minimum Wage (NMW) legislation, employers are required to keep records sufficient to show that the NMW has been paid. Therefore, it is unlikely that a worker earning close to the NMW would fall within the exception as their working time should be measured.

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