How working time regulations can limit your employees’ hours

10th July 2019

A study by French researchers has highlighted some of the health risks faced by those working long hours.

Sarah Garner, Solicitor at DAS Law, looks at the specific rules and regulations regarding the working day.

In general, there are laws in place which state how many hours you can make your employees work for. These can be opted out of, but you must be sure to follow the correct procedures.

If you employ staff in your business, there are limits on the amount of time you can expect them to work. This can be a complicated issue, so you should take care that you do not breach the relevant regulations.

Weekly limits

Working time regulations state that, normally, staff should not have to work more than 48 hours per week on average. Note that this does not mean they can never work more than 48 hours in a week – this is permitted as long as they do not do exceed this amount on average. In order to calculate the average, you should generally base the figures on the past 17 weeks.

However, while most staff cannot be made to work an average of more than 48 hours a week, they can opt out of this limitation if they wish to do so, allowing them to work longer hours. Nevertheless, they must do this voluntarily, and they should set out their decision to do so in writing. A worker can also agree to opt out for a certain period of time (for example, during a busy time for a business) or indefinitely.

You cannot implement an agreement with your entire staff that they will opt out of the 48-hour limit – while you are allowed to ask if specific workers would be willing to do it, this must be discussed individually. If a worker doesn’t want to opt out, you cannot dismiss them or treat them adversely.

A worker who has opted out is allowed to change their mind at any time but will not be obliged to work longer than an average of 48 hours a week. In order to cancel their opt-out, they need to give you at least seven days’ notice. The notice period may be longer if they agreed to this when initially opting out – at this stage you can set it to a maximum of three months.

As well as not being able to force a worker to opt out of the regulations, you cannot force them to cancel an opt-out agreement.

Exceptions to the working time regulations

There are exceptions on both sides of the working time regulations. Some workers can always be made to work more than an average 48 hours in a week, and some workers are not allowed to work more than 48 hours a week on average even if they want to.

The 48-hour weekly work limitation does not apply to:

  • Security and surveillance roles;
  • Domestic servants in private households;
  • Workers on board sea transport or sea-fishing vessels;
  • Mobile workers on vessels on inland waterways;
  • The emergency services (except trainee doctors) and the armed forces, in certain situations;
  • positions where 24-hour staffing is needed; or
  • Roles where the worker is in control of their time and their working hours are not measured (for example, self-employed people or senior managers).

Workers cannot opt out of the 48-hour working week if they are:

  • Airline workers;
  • Staff members on ships or boats;
  • Road transport workers or other operators of vehicles covered by EU drivers’ hours regulations; or
  • Security guards on vehicles with high-value loads.

How to figure out working hours

In order to check that an individual does not work more than an average of 48 hours per week, a reference period is used; usually, this will be 17 weeks. People can work for more than 48 hours in any given week, as long as the amount of time they work over a 17-week period averages out to 48 hours or less.

Working time regulations state that, normally, staff should not have to work more than 48 hours per week on average.

Sarah Garner

Time off does not count as part of the reference period (for example, if a worker is taking annual leave or is off sick, this will not reduce the average).

For the purposes of calculating average working hours, you should include time spent on:

  • Training relating to the worker’s role;
  • Paid overtime or involuntary unpaid overtime;
  • Travel time for workers where travel is part of their job (e.g. travelling salespeople);
  • Working lunches;
  • Being available if needed (being ‘on-call’) while remaining in the workplace;
  • Anything else which is stated as ‘working time’ under a contract.
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