The WTR provide basic entitlements for workers to rest breaks, rest periods and annual leave, and provide limits on working time, it implemented the EU Working Time Directive.
In summary, the WTR impose the obligations on employers providing for mandatory rest breaks and annual leave. These provisions are health and safety measures to ensure that workers take proper rest between working hours.
The obligations are:
- to ensure each worker’s working time does not exceed 48 hours per week on average;
- to allow each worker the following rest periods:
- 20 minutes when working more than six hours per day;
- 11 hours uninterrupted rest per day;
- 24 hours uninterrupted rest per week (or 48 hours uninterrupted rest per fortnight);
- If workers are exempt from the requirements for rest periods to offer them adequate compensatory rest (see below);
- to allow each worker 5.6 weeks’ paid annual leave per year;
- to ensure that night workers’ normal hours of work do not exceed eight hours per day on average;
- to ensure that night workers doing work involving special hazards do not work for more than eight hours per day;
- to ensure that all night workers are given a free health assessment at regular intervals;
- to transfer a night worker to day work on medical grounds;
- to ensure that in cases where work is monotonous, or the pattern of work puts workers’ health and safety at risk, adequate rest breaks are given; and
- to maintain records evidencing whether the limits on average working time, night work and health and safety assessments are being met.
The protections in the WTR do not apply equally to all workers. Some groups are given special protections, such as young workers and night workers. Others are exempt from some or all of the protections.
Workers
A worker is someone who either works under a contract of employment or who works under another contract, whether express or implied, and whether oral or in writing, whereby the worker undertakes to personally perform work for the other party whose status is not that of a client or customer of any profession or business undertaking carried on by the worker. This definition would include the majority of agency and freelance workers. It also includes members of limited liability partnerships (LLPs). The WTR do not apply to the genuinely self-employed.
Working Time
“Working time” is defined as any period during which the worker is working, carrying out their duties, and is at the employer’s disposal; or is receiving “relevant training”, or any other period which is agreed in a relevant agreement to be working time.
The following activities therefore fall within the definition of working time:
- Paid overtime
- Work taken home at the request of the employer
- Working lunches
- Work-related training
- Time spent waiting or on call at the workplace or another place chosen by the employer (this can include remaining within a specific radius of a particular location), even if the employee is allowed to sleep during that time
- Responding to calls/emails whilst on call at any location
- Travelling to incidents whilst on call
- Travel time where travel is part of the job (for example carers or sales representatives), this can include travel to the first and from the last appointments of the day, where the worker is a peripatetic worker.
The following activities are not normally included in the definition of working time:
- Rest breaks
- Rest periods
- Annual leave
- Time spent on call if the worker is not required to be present at a particular location
- Travel to and from the workplace
- Unpaid voluntary overtime
- Taking work home or responding to calls/emails voluntarily outside of normal working hours
- Work-related social events
The 48-hour limit
Adult workers cannot be required to work for more than 48 hours a week on average. Average weekly working time is normally calculated over a 17-week reference period.
Adult workers can agree that this limit on average weekly working hours does not apply to them. In this case, an opt-out agreement must be signed by each individual worker.
It is also unfair to dismiss a worker or subject them to a detriment for refusing to sign an opt-out agreement or for withdrawing one that has been agreed.
Night work
A night worker is someone who usually works at least three hours between 11pm and 6am.
The limit on night work is an eight-hour average limit on a night worker’s normal hours of work per day. Again, night working time is averaged over a 17-week reference period. The reference period can be longer if agreed in a collective or workforce agreement.
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 night. This cannot be averaged. Work is regarded as involving special hazards if it has been identified in a collective or workforce agreement as such, or if a risk assessment has identified the work as posing a significant risk to workers’ health and safety.
All night workers are entitled to a free health assessment before starting night work and at regular intervals thereafter. This can be done by the completion of an initial health questionnaire then referral to a doctor if necessary. A night worker is entitled to be transferred to day work on request if they have medical evidence indicating that night work is affecting their health.
Rest breaks and rest periods
If a worker is required to work for six hours or more, they are entitled to a continuous, uninterrupted rest break of at least 20 minutes. There is no requirement in the WTR for rest breaks to be paid, however, a contract may provide for paid breaks.
Workers are entitled to 11 hours’ uninterrupted rest in every 24-hour period. They are also entitled to 24-hours’ uninterrupted rest in every seven-day period, or to 48-hours’ uninterrupted rest in every fortnight.
Employers should pro-actively ensure that the working arrangements they put in place for workers allow them to take the rest to which they are entitled. Workers can choose to work through a rest break or a rest period, but employers must not require workers to do this, nor subject them to detriment if they choose to take the break rather than work. If a worker chooses to work through a rest break or rest period, there is no obligation on the employer to provide compensatory rest, but the employer remains responsible for ensuring that this does not subject the worker to any risk to their health or safety.
YOUNG WORKERS
Additional protections apply to young workers (i.e. those over minimum school leaving age but under 18 years of age).
Hours of work, rest breaks and rest periods
Young workers cannot work for more than eight hours a day or 40 hours a week. These are strict limits and hours cannot be averaged out over a reference period and there is no opt-out available. The total number of hours should be aggregated where the young worker works for more than one employer.
Young workers are entitled to a continuous uninterrupted rest break of at least 30 minutes if they are required to work for 4.5-hours or more.
Young workers are entitled to 12 hours’ rest between each working day and to two days off a week.
Night Work
Young workers cannot work at night between 10pm and 6am, or between 11pm and 7am if the contract of employment provides for work after 10pm. However, there are exceptions if there is no adult worker available due to unforeseen circumstances.
This prohibition on night work for young workers is varied for certain sectors. Provided that the employer requires the young worker to undertake work which is necessary to maintain continuity of service or production or is to respond to a surge in demand, and no adult worker is available to perform the work and undertaking the work would not adversely affect the young worker’s education or training, the prohibition only applies between the hours of midnight and 4.00am, for the following sectors:
- Agriculture.
- Retail trading.
- Postal or newspaper deliveries.
- A catering business.
- A hotel, public house, restaurant, bar or similar establishment.
- A bakery.
Protection from Detriment and Dismissal
Employers must not subject workers to a detriment because the worker:
- Refused to work more than an average of 48 hours per week;
- Refused to work when otherwise entitled to a rest break or rest period;
- Refused to sign an opt-out agreement; or
- Brought proceedings to enforce any right in the WTR.
Compensatory Rest
Workers may be entitled to ‘compensatory rest’ if they cannot take specific rest breaks because of the nature of their work. Compensatory rest breaks must be the same length of time as the rest break which they have been unable to take.
A worker may be entitled to compensatory rest if:
- they’re a shift worker and can’t take daily or weekly rest breaks between ending one shift and starting another
- their workplace is a long way from their home (eg an oil rig)
- they work in different places which are a reasonable distance from each other
- they’re doing security and surveillance-based work
- they’re working in an industry which is very busy at certain times of the year – like agriculture, retail, postal services or tourism
- they need to work because there’s an exceptional event, an accident or a risk that an accident is about to happen
- the job needs round-the-clock staffing so there aren’t interruptions to any services or production (for example care or hospital work)
- they work in the rail industry on board trains or their job is linked to making sure trains run on time
- their working day is split up (for example they’re a cleaner and work parts of their shift in the morning and the evening)
- there is an agreement between management, trade unions or the workforce (a ‘collective’ or ‘workforce’ agreement) that has changed or removed rights to these rest breaks for a group of workers
Enforcement
The obligations under the WTR can be enforced by individuals via the Employment Tribunals and also by the Health and Safety Executive, who can impose civil and criminal penalties.
Employment Tribunals will enforce the entitlement to rest breaks, rest periods and paid annual leave on behalf of workers. Claims must be brought within three months of the alleged breach and, if successful, awards of compensation may be made.
The Health and Safety Executive and local authority environmental health departments can enforce the average weekly and nightly working limits and the obligation to maintain records. Employers who are in breach of these obligations can be subject to an unlimited criminal fine, and/or improvement or prohibition notices. Breach of an improvement or prohibition notice can result in an unlimited fine and up to two years’ imprisonment for directors.
Annual Leave
All workers have, from the first day of employment, the right to 5.6 weeks’ paid holiday per year. Employers are allowed to include the eight UK bank holidays within this statutory holiday entitlement. In other words, a full-time worker in the UK has the right to 28 days’ holiday. Employers can insist that workers take paid holiday at specific times including on bank holidays, and some may insist that workers are available to work on bank holidays. Employers can offer more holiday than this, but not less. The arrangements as to when and how much holiday a worker can take is set out both in the WTR and the worker’s contract.