Most, if not all, businesses will at some point find themselves presented with a grievance by an employee. It is […]
An employer needs their employees to perform tasks to ensure the smooth running of the business. However, the law does not entitle employers to own all of their employees’ time. The Working Time Regulations were introduced in 1998 and set clear rules on working patterns for staff. They set rules on how much rest employees should receive and how much time off they are entitled to. Here we will discuss breaks and working patterns rather than holiday entitlements.
Below is a summary. There are lots of nuances and exceptions. Care must be taken when applying the Working Time Regulations, and we would always recommend proper training for managers and having a Trusted Adviser in your corner to help.
The Working Time Regulations apply to Workers. All employees are workers. Some self-employed contractors will also be classed as workers.
Workers are defined in the Working Time Regulations as employees or anyone else who is required to perform work personally where the person receiving the work is not a customer or client.
Employers should be wary when engaging subcontractors that if the contractor is not permitted to subcontract their work, then the contractor may be a worker entitled to many rights, including the rights afforded under the Working Time Regulations. Employers should also be wary that giving the contractor a right to subcontract or substitute must be a genuine right that the contractor may freely exercise and that the Tribunal can, and will, look behind the paperwork to assess whether the right is a genuine one.
There are also a number of workers from some industries that have special rules which can differ to the Working Time Regulations, such as sea workers, agricultural workers, domestic workers, aviation workers, workers with no fixed place of work and road transport workers, amongst others. Specialist advice should be sought in respect of workers with special rules.
The important thing to remember about the Working Time Regulations is that they provide a minimum standard in an average low-risk business. Where an employer’s business operations have a greater risk of accident, injury or death, compliance with Health and Safety requirements may require greater rest than the Working Time Regulations provide. It will not be a defence to a Health and Safety prosecution if more breaks should have been given, but the employer has stuck with the structure set out in the Working Time Regulations.
Each day a worker is entitled to 11 hours of rest. Every 24 hours, a worker is entitled to a daily rest period of not less than 11 consecutive hours.
In workers under 18, the young worker is entitled to 12 hours of rest each day. Meaning that every 24 hours, the young worker is entitled to a daily rest period of not less than 12 consecutive hours.
Each week a worker is entitled to an uninterrupted weekly rest period of 24 consecutive hours rest. The employer can operate for an uninterrupted period of 48 hours per fortnight. This means an employee is entitled to a day off a week or two days a fortnight.
In the case of workers under 18, the young worker is entitled to an uninterrupted weekly rest period of 48 consecutive hours. This means that the young worker is entitled to two consecutive days off each week.
It is also important to note that the 11-hour daily rest cannot run concurrently with weekly rest – they must be separate, so in reality, the weekly rest should be a minimum of 35 hours, the 24-hour weekly rest and the 11 hours of daily rest.
Workers should work no more than 48 hours per week on average. This is done by a reference period of 17 weeks, meaning a worker can work more than 48 hours in some weeks, providing that the average over the 17-week period is under 48 hours.
Workers can voluntarily opt out of this if they choose to. Workers who opt out can opt back in later, provided they give the requisite notice to their employer.
There are a number of instances where a situation arises where a worker must break the Working Time Regulations. If the employer does everything they can to avoid it, if it is impossible to comply with the rest entitlements and it is one of the listed cases, the worker can receive compensatory rest at another time.
For example, a worker in a care home is due to finish at 7 pm and scheduled to start at 7 am the next day. However, another worker calls in sick at the last minute, meaning that if the worker leaves at 7 pm, then the employer would not have sufficient staff numbers to cover the care home in line with their statutory obligations. The worker stays, and the employer does everything they can to find cover eventually, cover arrives at 10 pm, and there is no available cover to work from 7 am to 9 am the following morning. If the worker works from 7 am they will not have had 11 hours of rest. Suppose there is genuinely no cover for either 7 pm to 10 pm that night or 7 am to 9 am the following morning, and there is no genuine way to let the worker leave. There would not be a Health and Safety contravention. In that case, the employer will be able to ask the worker to work at 7 am as normally provided that they are afforded compensatory rest at another time.
Compensatory rest does not give the employer ‘a free pass’ to disregard the Working Time Regulations. This applies in very special circumstances, and specialist advice should be sought before deciding to deny any worker any of their rest entitlements.
The Working Time Regulations play a fundamental role in managing staff time, diaries, working patterns etc. The Employment Tribunal strictly enforces them, but with the right advice, you can easily navigate yourself through the complexities.
We would highly recommend having Trusted Advisers in your corner to help you. Wilford Smith’s business-focused services specialise in Employment Law, Commercial Law, Company Law, Commercial Conveyancing, and Regulatory and Criminal Investigations.
We can be your Trusted Adviser in all areas.
