Selected cases on working time, including on-call working, travelling time, and opt-out agreements
The CIPD believes that employers should protect their employees from overwork. If employees are working consistently long hours and this is having a negative impact on their performance or well-being, employers should take steps to establish why it’s happening and consider what might be done to address the issue.
The Working Time Directive aims to protect workers from excessively long working hours. Since it was applied to UK workplaces in 1998, the hope is that it’s encouraged positive changes in the attitudes and behaviour of employers and employees.
We believe that the best way to tackle a long-hours culture is to offer more flexible working patterns, and for managers to lead by example, for example by not working very long hours themselves and by not encouraging email contact out-of-hours. If there’s a culture of long-hours working, employers may need to carry out a review or audit to determine why people feel the need to work long hours – for example, are there issues concerning workload or management that need to be addressed, and/or are there opportunities for smarter ways of working?
Trends in UK working hours
According to the Office for National Statistics, full-time workers in the UK average around 39.2 paid hours per week. In our Absence management 2016 survey report, in partnership with Simplyhealth, over half of employers said that long working hours were the norm in their organisation which is a significant increase since the 2015 survey. It also found that a long-hours culture is strongly associated with an increase in stress-related absence. Larger organisations in the private and non-profit sectors are more likely to report that long working hours are the norm.
According to our report Employment regulation and the labour market, the average weekly hours worked by employees in the UK is in line with the OECD average, although the UK does have a comparatively high proportion of long-hours jobs.
The culture and impact of long-hours working
According to the 2011 Workplace Employment Relations Study (WERS), 41% of employees either agreed or strongly agreed with the statement: ‘People in this workplace who want to progress usually have to put in long hours.’ Professionals and managers were more likely than employees in other occupations to think that long hours were required to progress. The WERS found an association between employees’ well-being and their working hours: most employees who were working more than 48 hours per week said that their job made them feel tense ‘all’, ‘most’ or ‘some’ of the time.
According to the sixth European Working Conditions Survey, the majority of people (58%) are satisfied with the working time in their main paid job. Men more frequently work longer hours (48 hours or more, and self-employed workers in particular) and women more frequently work shorter hours (fewer than 20 hours).
The legal position
The main regulations governing working time in Great Britain are the Working Time Regulations 1998 (WTR) which implement the provisions of the Working Time Directive (93/104/EC). (There are separate regulations for Northern Ireland). They lay down minimum conditions relating to weekly working time, rest entitlements and annual leave, and make special provision for night workers. The rules governing working time have been subject to changes for example in connection with travelling time and holiday pay especially where the worker has a commission or overtime element to their regular pay (see below).
CIPD members can find out more on the changes and the legal aspects of working time from our Working Time Regulations law Q&As.
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.
Definition of working time
‘Working time' means any period during which the individual is working, is at the employer's disposal and is carrying out their activities or duties.
The basic rights
The WTR currently provide employees with the following basic rights and protections:
- a limit of an average of 48 hours a week over a 17 week period which a worker can be required to work
- a limit of an average of 8 hours work in 24 hours which night workers can work
- a right to 11 hours rest a day
- a right to a day off each week
- a right to an in-work rest break if the working day is longer than 6 hours
- a right to 28 days paid leave for full-time workers per year.
Some UK organisations implement the opt-out clause to the 48-hour limit to the working week. This allows employers to ask their staff to agree to work more than 48 hours a week over a 4-month ‘reference’ period. The 2011 WERS found that almost one-third of British workplaces had at least one employee who had signed an opt-out agreement. All managers had agreed to opt out of the WTR in nearly a quarter of workplaces.
However, employers cannot force employees to sign an opt-out: workers must agree to it and they must not be dismissed for refusing to sign one. (There have been several attempts by the EU to encourage the UK Government to implement the original commitment to remove the opt out, but no agreement has been reached.)
Employees are entitled to 28 days’ paid statutory annual leave (reduced pro rata for part-time employees). This may include the eight public holidays. The times at which individuals take the annual leave is mainly a contractual matter between them and their employer. Employers must take great care with the calculation and accrual of holiday entitlement, especially for employees who have a commission or overtime element to their pay, or have been on long-term sick leave, or on maternity leave. CIPD members can read our law Q&A on calculating holiday pay. There are also some rarely used rules which apply concerning refusals of requests for annual leave.
For more information on bank and public holidays, CIPD members can visit our Bank holidays law Q&As.
Every employee has the legal right to request flexible working after 26 weeks of employment. The statutory rights to request a flexible working arrangement and to request time off to train are outlined in our flexible working factsheet. CIPD members can find out more on these rights in our flexible working law Q&As.
Employers are legally obliged to provide special leave to employees in particular circumstances, for example:
- carrying out public duties
- court service
- trade union duties and activities
- military training and service
- parental leave
- personal and domestic leave.
Employees who hold specified public positions have a statutory right under the Employee Rights Act 1996 to ‘reasonable’ time off work to carry out their duties. These include:
- Justices of the Peace
- local authority members
- members of health bodies
- school and college governors
- members of police authorities.
Most court service is for jury service but employees may also be called as witnesses. Employers can be held in contempt of court if they refuse to provide time off for employees to undertake jury service.
Individuals summoned for jury service must attend court unless they are ineligible, disqualified or excused by the court, although jury service can be deferred. Among the categories of people who qualify for deferral are:
- shiftworkers and night workers – shiftworkers’ service should be deferred to a period when they do not have to attend during a rest day
- teachers or students during term time.
Employers are not legally required to pay employees while they are undertaking jury service. However, jurors are entitled to claim for travel and subsistence and for loss of earnings, up to a maximum daily rate.
Trade union duties and activities
Officials of recognised trade unions have statutory rights to take a reasonable amount of paid time off to carry out their duties, while union members have rights to reasonable unpaid time off to participate in union activities. Union learning representatives are also entitled to reasonable paid time off.
For officials (for example, shop stewards) appropriate duties must be concerned with:
- negotiations with the employer
- other functions on behalf of employees – terms of employment, discipline etc
- relevant training in, for example, negotiating skills or legislation.
Examples of the sort of activities that might entitle union members to unpaid time off include:
- attending workplace meetings about the outcome of negotiations
- meeting full-time officials
- voting in union elections.
Acas' Code of Practice on time off for union duties gives full guidance.
Military training and service
Members of the reserve forces undertake training and are often required to serve alongside the regular forces. Employees in the reserve forces have certain protections if they’re called up for service. It is an offence to dismiss an employee because he or she has been, or is likely to be, called up for military service. Employers of reservists may be able to claim financial assistance or apply for an exemption or deferral.
For more information on employing reservists CIPD members can see our Reserve forces law Q&As.
Maternity, paternity, adoption and parental leave
Women employees have had statutory maternity rights for many years. Fathers and adoptive parents also have statutory rights to adoption leave and paternity leave and, from April 2015, may be entitled to shared parental leave. Paternity and adoption leave rights also apply to partnerships of the same sex. There were proposals to extend shared parental leave and pay to working grandparents by 2018 but a consultation scheduled by the previous Conservative government for May 2016 did not materialise and so far the idea has not been pursued by the current government.
For more detail see our Maternity, paternity and adoption rights factsheet. CIPD members can see more information on the legal aspects in our Maternity, paternity, shared parental and adoption leave and pay law Q&As and in our Shared parental leave factsheet.
In addition to maternity, paternity or adoption leave, qualifying employees have the right to take a total of 18 weeks’ unpaid parental leave. The leave should be taken in blocks of one week or more and is subject to a limit of four weeks a year. CIPD members can see more information on these changes and the legal aspects in our Parental rights and family-friendly provisions law Q&As.
Personal and domestic leave
All reasonable employers will grant time off, paid or unpaid, for personal reasons such as bereavement or illness, or domestic emergencies like fire, flooding or burglary. There is a statutory right to time off to make arrangements to care for dependants in certain emergencies, and to make funeral arrangements for dependants and attend their funerals. Under the 1996 Employment Relations Act, employees may take a reasonable amount of time off to deal with an emergency relating to a dependant.
A 'dependant' includes:
- the employee’s spouse or civil partner, child, parent or someone who lives in the same house (but not a lodger or tenant), or
- any person who reasonably relies on the employee for assistance when they fall ill, are injured or assaulted, or relies on the employee to make arrangements for provision of care in the event of their illness or injury.
What is ‘reasonable’ is not specified in the legislation because it will depend on the individual circumstances, but one or two days will probably be sufficient for most typical emergencies such as making childcare arrangements for a sick child.
There is no right to time off to attend medical or dental appointments and employers’ practices vary. Some may ask employees to make up the time or use annual leave. Others may grant paid or unpaid leave.
Proposed parental bereavement leave
A Parental Bereavement (Leave and Pay) Bill is progressing through Parliament. This will give employed parents two weeks’ statutory bereavement leave, paid at the statutory rate if the parent has 26 weeks’ service.
CIPD members are strongly supportive of this statutory provision being introduced for bereaved parents. Currently workers are entitled to a ‘reasonable’ amount of unpaid leave following the death of a child. Although the new legislation is a private members’ bill, parental bereavement leave was a Conservative government manifesto commitment, and it is supporting the Bill. The new rights are likely to become available in 2020.
Useful contacts and further reading
BURKE, R.J. and COOPER, C.L. (2008) The long work hours culture: causes, consequences and choices. Bingley: Emerald Group.
DEPARTMENT FOR BUSINESS, INNOVATION AND SKILLS (2014) The fourth work-life balance employer survey (2013). London: BIS.
DEVLIN, C. and SHIRVANI, A. (2014) The impact of the Working Time Regulations on the UK labour market: a review of evidence. London: Department for Business Innovation and Skills.
INCOMES DATA SERVICES. (2013) Working time. Employment law handbooks. London: IDS.
FEIN, E.C. and SKINNER, N. (2015) Clarifying the effect of work hours on health through work-life conflict. Asia Pacific Journal of Human Resources. Vol 53, No 4, October. pp448-470.
LAMONT, V. (2013/4) Keeping an eye on the time. Employers' Law. December/January. pp18-19.
REID, E. and RAMARAJAN, L. (2016). Managing the high intensity workplace. Harvard Business Review. Vol. 94, Issue 6, June. pp84-90.
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and by Rachel Suff.
Rachel Suff: Employee Relations Adviser
Rachel joined the CIPD as a policy adviser in 2014 to increase the CIPD’s public policy profile and engage with politicians, civil servants, policy-makers and commentators to champion better work and working lives. An important part of her role is to ensure that the views of the profession inform CIPD policy thinking in ER areas such as health and well-being, employee engagement and employment relations.
As well as developing policy on UK employment issues, she helps guide the CIPD’s thinking in relation to European developments affecting the world of work. Rachel is a qualified HR practitioner and researcher; her prior roles include working as a researcher/editor for XpertHR and as a senior policy adviser at Acas.