Working Time Regulations FAQ
Weekly Working Time
1: What is the basic requirement?
Unless the individual worker has agreed in writing that it should not apply to them, the working time averaged over a rolling 17 week period should not exceed 48 hours per week. For "special case" workers, the reference period is a rolling 26 week period.
2: What is working time?
Working time is any period in which staff are working. It includes time spent training and travelling to work site, but does not include routine travel between home and work. Neither does it include lunch breaks or time spent on-call unless actually working.
3: Do any other jobs have to be declared?
The limit of 48 hours applies to all working time regardless of the number of employers involved. Some employers are, therefore, asking staff to declare any second jobs in order to consider whether there is a need to reduce their hours to comply with the 48 hour limit.
However, where staff have agreed the limit should not apply to them, the employer should not require such information.
4: What about time spent on voluntary activities?
The working time limits do not apply to any additional hours that the worker chooses to do without being required by the employer to do so. This would, therefore, include all voluntary activities such as work undertaken as trade union branch secretaries and local authority councillors.
5: Can a collective agreement be reached on opting out of the 48 hour limit?
No - this is a matter that can only be agreed between the individual worker and employer?
6: My employer requires staff who opt out to give three months notice if they want to opt back in. Can a shorter period be agreed?
The regulations provide for a minimum notice period of seven days and a maximum of three months. While technically this is a matter for agreement between the individual worker and the employer, there is nothing to prevent a collective agreement being reached. However, if the period of notice is amended by a collective agreement, it may be necessary for the employer to require staff to submit revised opt-out forms.
7: Can staff who have not opted out work more than 48 hours in any one week?
Yes, this is perfectly acceptable provided that when averaged over the agreed reference period, the number of working hours does not exceed 48 hours per week.
8: Who is responsible for ensuring that staff do not work more than the average 48 hours?
The regulations require employers to take all reasonable steps to ensure the working time limit is complied with in the case of each worker to whom it applies. They must also keep adequate records that show whether the limits are being complied with.
9: My employer wants to extend the reference period for calculating the 48-hour limit. Can this be done?
A collective agreement can be made for the reference period to be calculated on the basis of successive periods of 17 weeks (or 26 weeks as the case may be).
Where there are objective or technical reasons, or reasons concerning the organisation of work, a collective agreement can also be made to vary the reference period for particular workers or groups of workers to no more 52 weeks.
10: What is a "special case" worker?
There are various categories of "special case" workers. In particular these include:
- Workers engaged in security or surveillance activities
- Offshore or dock work
- Workers engaged in the carriage of passengers on regular urban (road) transport services
- Workers employed in rail transport whose activities are intermittent; who spend their working time on board trains; or whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic
11: My employer has declared some staff are "special case" workers. Can he do this without agreement?
The regulations define who are "special case" workers. Any disagreements regarding the employer's interpretation of this should be dealt with through the collective bargaining procedures.
12: What effect will this have on their rights and entitlements?
The rights and entitlements relating to length of night work; rest periods and rest breaks do not apply to "special case" workers. However, an equivalent period of compensatory rest should be granted where this results in a shortfall to the rest entitlement.
13: Are there other situations where certain entitlements may not apply?
The rights and entitlements relating to length of night work; rest periods and rest breaks do not apply where any worker's activities are affected by:
- An occurrence due to unusual and unforeseeable circumstances beyond the employer's control
- Exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer
- An accident or the imminent risk of an accident
14: Are there any other workers who are generally excluded from certain entitlements?
Mobile workers in road transport, who are not covered by the European Drivers Hours Regulations, are not entitled to the specific provisions relating to length of night work; rest periods and rest breaks. Instead, the regulations merely require the provision of " adequate rest".
Length of Night Work
15: What is the basic entitlement?
A night worker's normal hours of work should not on average exceed eight hours in any 24 hour period. The reference period for calculating the average hours can be any period of 17 weeks on a rolling basis.
If night workers work less than 48 hours a week, they will not be exceeding this limit.
16: Who is considered to be a night worker?
A night worker is someone who regularly works at least three hours at night. For this purpose, regular means for at least one third of the annual working time.
Night time is defined as being between 23.00 and 06.00 hours.
17: Some staff only work night shifts on an occasional basis, can they still be considered as night workers?
A different proportion of annual working time can be specified within a collective agreement.
18: Can night time hours be amended to include staff who work late into the night or start in the early hours of the morning?
A collective agreement can set a different period of not less than 7 hours duration that includes the period between midnightand 05.00 hours. For example, it could be extended to 07.00 hours to include staff who work from 04.00 hours.
19: Does the limit on night time hours mean staff cannot work 12 hour rosters when on nights?
A collective agreement can modify or exclude the application of the limit on the length of night work in respect of any particular workers or groups of workers if required.
20: Can the reference period be amended?
A collective agreement can be made for the reference period to be calculated on the basis of successive periods of 17 weeks. A collective agreement can also be made to vary the length of the reference period for particular workers or groups of workers.
21: The work on nights is considered to involve heavy physical strain. Are there any special conditions that may apply?
A worker whose work involves special hazards, or heavy physical or mental strain should not perform night work for more than eight hours in any 24 hour period. (NB this cannot be averaged out).
22: How is this determined?
Work is regarded as involving special hazards, or heavy or mental strain if it is identified within a collective agreement that takes account of the specific effects and hazards of night work. Alternatively, if it is recognised within a risk assessment as involving a significant risk to the health and safety of workers.
23: Can the limit in the case of special hazards etc be modified?
A collective agreement can modify or exclude the application of the limit on the length of night work in respect of any particular workers or groups of workers.
24: What is the basic entitlement?
A night worker must be provided with the opportunity of a free and confidential health assessment.
25: Does the assessment have to be made by a doctor?
Initially the assessment need only consist of a questionnaire. A medical examination would only be required where there are doubts about a worker's fitness for night work.
26: Must all night workers complete a health questionnaire?
Although the employer must offer it, workers do not have to take the opportunity of a health assessment.
27: Is there a set frequency for these assessments?
No, it should be provided on a regular basis, perhaps once a year. However, the exact frequency can be determined within a collective agreement.
28: Does suitable alternative work have to be provided if a doctor advises that a worker cannot work nights?
The employer is only obliged in these circumstances to transfer staff to day work if the possibility exists.
Daily Rest Periods
29: What is the basic entitlement?
A worker is entitled to a rest period of eleven uninterrupted hours between each working day.
30: Does this affect the existing minimum rest period of 12 hours that normally applies to railway staff who undertake safety critical work?
The provisions of the Working Time Regulations do not override the requirements of existing health and safety legislation. It is the view of the HSE that where a worker is subject to more favourable terms than those stated in the Working Time Regulations, the more favourable terms should apply.
31: What is the position of shift workers who cannot take the full entitlement when changing shifts?
The basic entitlement to daily rest under these regulations does not apply to shift workers who cannot take the full entitlement when changing shifts.
32: Does the basic entitlement apply to workers on split shifts?
The basic entitlement to daily rest under these regulations does not apply to workers on split shifts.
33: Can the basic entitlement be modified?
A collective agreement can modify or exclude the basic entitlement to daily rest in respect of any particular workers or groups of workers.
Weekly Rest Period
34: What is the basic entitlement?
A worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period.
35: Can the employer amend this?
An employer can amend this entitlement to provide two uninterrupted rest periods of not less than 24 hours, or one uninterrupted rest period of not less than 48 hours in each 14 day period.
36: Can the weekly rest period include any part of the daily rest entitlement?
The weekly rest period should not include any part of the daily rest period entitlement except where this can be justified by objective or technical reasons, or reasons concerning the organisation of work. In normal circumstances, therefore, staff should have a minimum of 35 hours free from work.
37: When should the seven-day period be calculated from?
The seven day period or (as the case may be) fourteen day period should begin from midnight on the Sunday.
38: What is the position of shift workers who cannot take the full entitlement when changing shifts?
The basic entitlement to weekly rest under these regulations does not apply to shift workers who cannot take the full entitlement when changing shifts.
39: Does the basic entitlement apply to workers on split shifts?
The basic entitlement to weekly rest under these regulations does not apply to workers on split shifts.
40: Can the basic entitlement be modified?
A collective agreement can modify or exclude the basic entitlement to weekly rest in respect of any particular workers or groups of workers.
A collective agreement can also specify a different starting day for the calculation of the seven day (or as the case may be) fourteen day period.
41: What is the basic entitlement?
A worker who is required to work more than six hours on any day is entitled to an uninterrupted rest break of not less than 20 minutes which, if applicable they are entitled to spend away from their workstation.
42: When should it be taken?
The break should be taken during the period of work, and not at the beginning or end of it. The precise timing will be a matter for collective agreement.
43: Does it have to be paid time?
The regulations do not specify that it needs to be a paid rest break. This is something that can be determined within a collective agreement.
44: Can the entitlement be modified?
A collective agreement can modify or exclude the basic entitlement to a rest break in respect of any particular workers or groups of workers.
45: Are there any special circumstances that may require additional rest?
Where the pattern of work puts the health and safety of a worker at risk, in particular because the work is monotonous or the work rate is predetermined, the employer must provide adequate rest breaks e.g. short breaks more frequently.
46: What does compensatory rest mean?
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 rest a week, and the principle of compensatory rest is that on average everyone still receives that entitlement, although some rest may come slightly later than normal.
47: What are the circumstances in which compensatory rest may be required?
In any case where a worker is required to work during a period that would otherwise be a rest period or rest break, the employer should wherever possible grant an equivalent period of compensatory rest. This includes those situations where workers are excluded from full entitlement because they have been designated as "special case" workers, shift workers or by the operation of a collective agreement.
48: What does "adequate rest" in the case of a mobile worker in the road transport sector mean?
Adequate rest is defined as regular rest periods, the duration of which are expressed in units of time. They should also be sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, workers do not cause injury to themselves or others. Neither should their health be damaged in either the short or longer term.
However, where existing regulatory or contractual provisions are more generous than that provided by the above definition, the rest breaks the workers already receive should remain the same.
49: What is the basic entitlement?
A worker is entitled to a minimum four weeks paid annual leave each year.
50: Can bank and public holidays be included in this entitlement?
The minimum leave entitlement under these regulations is not additional to bank holidays. Where workers are paid for bank or public holidays, employers can, therefore, use such days to count towards the annual entitlement.
51: When should the leave year begin?
In the absence of a collective agreement, the leave year should begin on the 1st October each year.
52: Can the leave entitlement be taken in instalments?
Leave can be taken in instalments, but that part of any leave covered by these regulations may only be taken in the leave year to which it applies. It cannot be carried over to the following leave year.
53: Can payment in lieu be made in respect of any leave not taken?
The leave entitlement covered by these regulations cannot be replaced by a payment in lieu except where the workers employment is terminated.
54: How much notice should be provided when requesting annual leave?
The arrangements for taking leave covered by these regulations can be covered by a collective agreement, or in the absence of same, the notice period that a worker must give should be at least twice that of the period of leave requested. A refusal by the employer must be given within a period equivalent to the leave requested.
55: How should annual leave pay be calculated?
Payment for annual leave should be based upon normal working hours. This would include any shift premia or bonus payments, but not overtime unless guaranteed as part of the contract of employment.
56: How are the requirements relating to weekly working time, night work limits, health assessments and record keeping to be enforced?
The limits on working time and night work, the right to a health assessment and the keeping of records are enforceable by the HSE (or local authority).
57: How are the entitlements relating to rest periods and breaks, and paid annual leave going to be enforced?
Entitlements covering the daily and weekly rest periods, rest breaks and paid annual leave can be enforced through individual complaint to an Employment Tribunal.
58: Are there any safeguards to protect workers should they suffer any detriment for complying with their rights and entitlements?
A worker can complain to an Employment Tribunal if they suffer any detriment (dismissal or other action) imposed by their employer for:
- refusing to sign an opt out forms
- refusing to exceed the limit on average weekly working time;
- refusing to work when entitled to a rest period, break or annual leave or;
- making allegations in good faith about breaches of these regulations.