The basic rules
Workers must not work more than an average 48 hours a week over a 17 week ‘reference period’, or a total of 816 hours over the whole reference period, unless:
They have signed an ‘opt-out’ agreement;
They have entirely (not partly) unmeasured working time, or they entirely (not partly) determine their own hours of work (typically senior managerial staff);
They are genuinely self-employed, and can work whatever hours they like.
The 48 hours includes overtime, time spent on work-related training and working lunches (eg business lunches). A normal lunch break is not included.
Where the work involves travelling — for example, a travelling salesman — this is included. Otherwise travel is not usually included. Travel between home and work is unlikely to count as working hours, though it will depend on whether the travel is undertaken in normal working time.
Periods of annual or maternity leave, or illness, are excluded from the relevant reference period.
Young workers
In addition, workers over the minimum school leaving age, but under 18, must not work more than eight hours per day, and 40 hours per week. Nor should they work between 10pm and 6am, or between 11pm and 7am except in certain circumstances.
Extending the reference period
The reference period can be extended from 17 to 26 weeks where a worker is covered by one of the ‘special case’ exemptions (set out in the Regulations). These permitted extensions are designed to allow for seasonal industries, or enterprises which require round-the-clock working, such as hospitals or utilities.
The reference period can be extended up to 52 weeks if there is an agreement with the workforce or a recognised trade union.
The reference period can be extended from 17 to 26 weeks to cover emergencies (eg workers coming in to cope with a flood). However, people who come in over the weekend are entitled to ‘compensatory rest’ — that is, enough time off to ensure that they have at least one extra full day off per week, over the next two weeks. In one case (the Jaeger case), the European Court of Justice ruled that such ‘compensatory rest’ must be taken immediately after the extra work was done, but latest proposals from the European Commission would require it to be taken within 72 hours. The British government is arguing for greater flexibility where longer periods of unplanned but essential work are required, with the ‘compensatory rest’ being made available over the following three weeks.
‘Opt-out’ agreements
Agreements to ‘opt-out’ of the working time rules must be entered into voluntarily by each worker. They must be in writing and signed.
Workers may withdraw their agreement at any time, providing they give the notice required under the agreement. Employers can require up to three months. If there is nothing in the agreement, workers can give seven days’ notice.
If you dismiss someone who refuses to work longer hours, or disadvantage them (for example, by shifting them to a less attractive job), they can complain to an Employment Tribunal. A dismissal will be automatically unfair — your employee does not need the normal one year of continuous employment to put in a claim, in this case. If he complains of detrimental treatment short of dismissal, and the Employment Tribunal finds in his favour, it can award him whatever compensation it finds appropriate.
Under a deal with the EU, the UK has agreed that the opt-out will be retained in future, but the opt-out will have to be renewed annually, opt-outs signed within the first four weeks of employment are void, workers can withdraw within six months of signing, or on two months’ notice, and a maximum 60-hour working week will apply to opted-out workers, calculated as an average over three months (unless a worker’s on-call time is treated as working time, in which case the limit is 65 hours). There will be an exception for short-term workers on contracts of less than ten weeks, who may work up to 78 hours per week. As yet, no date for introduction of the new rules has been set.
‘On call’ workers
Hours on call away from the workplace, where the employee is free to pursue leisure activities, only count as working time for that time which is actually spent undertaking normal duties.
Where time on call has to be spent at the workplace, however, the European Court of Justice has ruled (in the SiMAP and Jaeger cases) that this counts as working time, whether or not the employee is actually working. The British government is still arguing for a change in EU law to allow for a more precise definition of working time (or non-working time) under such circumstances. There are therefore EU proposals to define ‘active’ on-call time, which will count as working time, as time which workers are required to spend at your premises, but during which they are not required to perform any duties. These are unlikely to become law before 2010. Meanwhile the sensible course is to keep ‘on call’ time on the premises down to a minimum.It is strongly recommended that you take legal advice if you have ‘on call’ workers, since the cost of getting it wrong could be very high.
Record-keeping
While not a legal requirement, you should keep records of the hours actually worked, for two years, even for opted-out workers, and make them available to the authorities if required to do so.
Enforcement
The Health and Safety Executive and the relevant Local Authority Environmental Health Department enforce the time limits, depending on the nature of your business.
If in doubt, take legal advice.
