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Your guide to the Working Time Regulations: sections 1 - 4

URN No: 08/611/A1

This document provides guidance on the limits on working time and the entitlements provided for in the Working Time Regulations 1998 (as amended). It gives general guidance only and should not be regarded as a complete or authoritative statement of the law.

Readers should be aware that there may be developments in new legislation or case law which affect the rights of workers.

Contents

Section 1: Who's who
Section 2: Working time limits ('the 48-hour week')
Section 3: Working at night
Section 4: Health assessments for night workers
Section 5: Time off 
Section 6: Rest breaks at work
Section 7: Paid annual leave
Section 8: More about the application of the regulations
Section 9: Sample health questionnaire
Section 10: Frequently asked questions
Section 11: Useful names, numbers and addresses

For sections 5-11 go to:

SECTION 1: WHO’S WHO

A worker is:

• someone who has a contract of employment, or
• someone who is paid a regular salary or wage and works for an organisation, business or individual. Their employer normally provides the worker with work, controls when and how the work is done, supplies them with tools and other equipment, and pays tax and National Insurance contributions. This includes part-time and temporary workers and the majority of agency workers and freelancers.

Someone doing in-house training or a trainee on work experience - for example, doing a National Traineeship - is also a  worker. A young worker is someone who is above the minimum school leaving age but under 18

Where the regulations do not apply

If you are self-employed, running your own business and are free to work for different clients and customers, the Working Time Regulations do not apply to you.

Certain workers are not subject to these regulations, because they will be governed by sector-specific provisions. These are:

• Sea transport, as covered by the Seafarers' Directive (1999/63/EC)
• Mobile workers in inland waterways and lake transport
• Workers on board sea going fishing vessels
• Air transport, as covered by the Aviation Directive (2000/79/EC). This Directive affects all mobile workers in commercial air transport (both flight crew and cabin crew), but not workers employed in General Aviation

Other workers are only subject to certain provisions of these regulations. These are:

• Mobile workers in road transport, as covered by the Road Transport Directive (2002/15/EC). This Directive affects mobile workers who are participating in road transport activities covered by EU drivers' hours rules. This includes drivers, members of the vehicle crew and any others who form part of the travelling staff

From the 1^st August 2003, workers subject to the Road Transport Directive benefit from the entitlement to paid annual leave and the right to health assessments for night workers under the Working Time Regulations.

The armed forces, the police and emergency services are outside the scope of the regulations in certain circumstances.

However, young workersin the armed forces, the police and emergency services, the aviation sector and the road transport sector, are covered by the young workers provisions in the Working Time Regulations.

Sectors previously excluded from the regulations

On 1 August 2003, the Working Time Regulations extend cover to the following sectors:

• Workers in air transport, other than those covered by the Aviation Directive.
• All workers in rail transport.
• Workers in road transport, other than those subject to the Road Transport Directive.
• Non-mobile workers in sea fishing, sea transport, inland waterways and lake transport.
• All workers in other work at sea, such as offshore work in the oil and gas industry.

From 1 August 2004, the regulations will extend in full to cover doctors in training with the exception of the weekly working time limits and special rules for the reference period, which will be phased in over a further five-year period (see Special daily and weekly working time limits in Section 2).

SECTION 2: WORKING TIME LIMITS

• Workers cannot be forced to work for more than 48 hours a week on average.
• Young Workers may not ordinarily work more than 8 hours a day or 40 hours a week, although there are certain permitted exceptions (please see Special daily and weekly working time limits).
• Working time limits for doctors in training are being phased in gradually (please see Special daily and weekly working time limits)
• Working time includes travelling where it is part of the job, working lunches and job-related training.
• Working time does not include travelling between home and work, lunch breaks, evening classes or day-release courses.
• The average weekly working time is normally calculated over 17 weeks. This can be longer in certain situations (26 weeks) and it can be extended by agreement (up to 52 weeks - see Section 8).
• Workers can agree to work longer than the 48-hour limit. An agreement must be in writing and signed by the worker. This is generally referred to as an opt-out. It can be for a specified period or a indefinite period. There is no opt-out available from the Young Workers limits.
• Workers can cancel the opt-out agreement whenever they want, although they must give their employer at least seven days’ notice, or longer (up to three months) if this has been agreed.
• The working time limits do not apply if workers can decide how long they work - see Section 8. 
  

More detailed information

If you are an employer, you must take all reasonable steps to ensure that workers you employ are not required to work more than an average of 48 hours a week, unless they have signed an opt-out agreement.

Special daily and weekly working time limits

Young workers

Young workers may not ordinarily work more than:

• 8 hours a day
• 40 hours a week

These hours worked cannot be averaged out and there is no opt-out available.

They may work longer hours where this is necessary to either:

• maintain continuity of service or production, or
• respond to a surge in demand for a service or product

and provided that:

• there is no adult available to perform the task
• the training needs of the young worker are are not adversely affected
  

Young workers who are employed on ships or as part of the armed forces are excluded from the working time limits under the Working Time Regulations.

Doctors in training

From 1 August 2004, doctors in training will be subject to weekly working time limits, which will be phased in as follows:

• 58 hours from 1 August 2004 to 31 July 2007
• 56 hours from 1 August 2007 to 31 July 2009
• 48 hours from 1 August 2009

Their average weekly working time is calculated using a 26-week reference period (see section How is the average weekly working time calculated? for information on how the average weekly working time is calculated).

What is ‘working time’?

The Working Time Regulations state that working time is when someone is "working, at his employer’s disposal and carrying out his activity or duties".

This includes:

• Working lunches, such as business lunches.

• When a worker has to travel as part of his or her work, for example a 24-hour mobile repairman or travelling salesman.

• 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.

This 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.

On 3 October 2000 the European Court of Justice gave judgement in a case concerning the status of 'on-call' time (1).The judgement related to doctors employed in primary health care teams although a similar approach has been taken by the courts in other areas.  It indicated that 'on-call' time would be working time when a worker is required to be at his place of work.  When a worker is permitted to be away from the workplace when 'on-call' and accordingly free to pursue leisure activities, on-call time is not 'working time'

(1) Sindicato de Médicos de Asistencia Publics (SIMAP) - v - Conselleria de Sanidad y Consumo, confirmed in subsequent cases.

is the average weekly working time calculated?

The number of hours worked each week should be averaged out over 17 weeks or however long a worker has been working for their employer if this is less than 17 weeks. This period of time is called the ‘reference period’.

Workers and employers can agree to calculate the average weekly working time over a period of up to 52 weeks under a workforce or collective agreement. The reference period is also extended to 26 weeks in other circumstances - see Section 8.

• Doctors in training have a 26-week reference period
• The offshore sector has a 52-week reference period

The average weekly working time is calculated by dividing the number of hours worked by the number of weeks over which the average working week is being calculated, for example 17.

When calculating the average weekly working time, if the worker is away during the reference period because he or she is taking paid annual leave, maternity, paternity, adoption or parental leave, or is off sick you will need to make up for this time in your calculation. Do this by adding the hours worked during the days which immediately followed the 17-week period – use the same number of days as those when work was missed.

What if a worker agrees to work longer hours?

An individual worker may agree to work more than 48 hours a week. If so, he or she should sign an opt-out agreement, which they can cancel at any time. The employer and worker can agree how much notice is needed to cancel the agreement, which can be up to three months. In the absence of an agreed notice period, the worker needs to give a minimum of seven days' notice of cancellation. 

Employers cannot force a worker to sign an opt-out. Any opt-out must be agreed to. Workers cannot be fairly dismissed or subjected to detriment for refusing to sign an opt-out.

Employers must keep a record of who has agreed to work longer hours.

See Section 8 for:

When do these rules not apply?
What to do if you are not receiving your rights as a worker
What records do employers need to keep?

(1) Sindicato de Médicos de Asistencia Publics (SIMAP) - v - Conselleria de Sanidad y Consumo

SECTION 3: WORKING AT NIGHT

• A night worker is someone who normally works at least three hours at night.
• Night time is between 11pm and 6am, although workers and employers may agree to vary this.
• 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 is calculated over 17 weeks. This can be longer in some situations.
• A night worker cannot opt-out of the night work limit

• Young workers should not ordinarily work at night, although there are certain exceptions (please see Special niight work limits for Young Workers).

Employers must check:

• Whether you employ people who could be classified as night workers.
• How much working time night workers normally work.
• If night workers normally work more than eight hours a day on average, how they can reduce hours of work or whether any exceptions or flexibilities apply (See Section 8).
• If a worker does work which may be particularly hazardous.

Mobile workers 

Mobile workers (2) 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.

More detailed information

What is ‘night time’?

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 5 am.

Who is a night worker?

You will be a "night worker" if your daily working time includes at least three hours of night time:

• on most days you work;
• on a proportion of the days you work which is specified in a collective or workforce agreement; or
• often enough for it to be said that you work such hours "as a normal course".

The words "as a normal course", means on a regular basis. There has been a Court ruling that a worker who worked at night for one third of his working time was a night worker. Further clarification from the European Court is expected in due course. Occasional, or ad hoc, work at night does not make you a night worker.

Nightly working time should be averaged out over a reference period, which is usually 17 weeks. This period could be longer if agreed in a workforce or collective agreement. Night work limits do not apply in the special circumstances - see Section 8.

If workers work less than 48 hours a week on average, they will not exceed the night work limits.

The average hours worked at night are calculated by dividing the number of normal hours worked in the reference period – e.g. 17 weeks – by the number of days in the period, after the number of rest days which the worker has taken in relation to their entitlement under the regulations has been subtracted.

Normal hours of night work include overtime where it is part of a night worker's normal hours of work.

Special hazards

Where a night worker’s work involves special hazards or heavy physical or mental strain, there is an absolute limit of eight hours on the worker’s 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; or
• 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.

Special night work limits for Young Workers

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 in the case of certain kinds of employment, as set out below.

Young workers may work throughout the night if they are employed in:

• Hospitals or similar establishments 

or in any of the following activities:

• Cultural
• Artistic
• Sporting
• Advertising
  

Young workers may work between 10 or 11pm to midnight and between 4am to 6 or 7am if they are employed in:

• agriculture
• retail trading
• postal or newspaper deliveries
• a catering business
• a hotel, public house, restaurant, bar or similar establishment
• a bakery

The circumstances in which young workers may work are that the work they are required to do is necessary to either:

• maintain continuity of service or production, or
• respond to a surge in demand for service or product

and

• there is no adult available to perform the task
• the employer ensures that the training needs of the young worker are not adversely affected
• the young worker is allowed an equivalent period of compensatory rest 

Young workers must be adequately supervised where that is necessary for their protection.

Young workers in the film and television industry can expect to be covered by the derogation from the night work limit, on the grounds that night shooting, sometimes pre-scheduled, may be required to "maintain continuity of production", and by the very nature of the work, there would be no adult available to perform the task. The young worker's training needs should not be adversely affected and he should receive compensatory rest (see What is compensatory rest?).


See Section 8 for:
When do these rules not apply?
What to do if you are not receiving your rights as a workers
What records do employers need to keep?

(2). For the purposes of the Working Time Regulations, “mobile worker” means any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road or air.  

SECTION 4: HEALTH ASSESSMENTS FOR NIGHT WORKERS

• If you are an employer you must offer night workers a free health assessment before they start working nights and on a regular basis while they are working nights. In many cases it will be appropriate to do this once a year, though employers can offer a health assessment more than once a year if they feel it is necessary.
• Workers do not have to take the opportunity to have a health assessment (but it must be offered by the employer).
• A health assessment can be made up of two parts: a questionnaire and a medical examination. The latter is only necessary if the employer has doubts about the worker’s fitness for night work.
• 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.
• 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.
• If a worker suffers from problems which are caused or made worse by night work, the employer should transfer him or her to day work if possible.
• New and expectant mothers should be given special consideration.
• Special consideration should be given to young workers’ suitability for night work, taking account of their physique, maturity and experience.

More detailed information

To be sure workers are fit for night work, employers must offer a free health assessment to anyone who is about to start working nights and to all night workers on a regular basis.

Health and working at night

Every employer should regularly assess the health and safety risks to which their workers are exposed. They should identify hazards, assess how harmful they could be and take steps to reduce any risks.

It is rare that someone cannot work at night at all because of a medical condition. However, some workers may be more at risk working at night if they suffer from certain medical conditions.

Mobile workers and workers subject to the Road Transport Directive

Although excluded from the night work limit in the Working Time Regulations, mobile workers and workers subject to the Road Transport Directive who are 'night workers' are entitled to health assessments under the Regulations.

How employers should assess workers’ health

As an employer it is suggested you take two steps to be sure workers are fit to work nights.

• Step 1: You ask workers to fill in a questionnaire which asks specific questions about their health which are relevant to the type of night work they will be doing.
• Step 2: If you are not certain they are fit for night work following the questionnaire results, you ask them to have a medical examination.

Health assessments must be offered before someone starts working nights. They should then be repeated on a regular basis afterwards.

See Section 9: Sample Health Questionnaire.

When the questionnaire has been answered by the night worker, it should be checked. Please remember that some people may not want to say they have a medical condition in case it affects their chances to work. If there are any doubts as to whether someone is fit for night work, the employer should ask the worker to have a medical examination.

When asking for a medical examination to be carried out, employers should explain to the doctor or nurse what type of work is involved.

The medical examination may produce two types of information:

• A simple fitness-for-work statement which will be given to the employer.
• Clinical information which is confidential and can only be released to an employer (or any other third party) with the worker's written consent.

What to do if a worker is unfit for night work?

If a qualified health professional advises that a night worker is suffering from health problems caused by or made worse by working at night, the worker has a right to be transferred, if possible, to suitable day work.

See Section 8 for:
When do these rules not apply?
What to do if you are not receiving your rights as a worker?
What records do employers need to keep?


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