Overview

The main working time rules in the UK are:

These regulations cover various matters including hours of work and holidays and were originally based on the EC Working Time Directive. The WTR have been subsequently amended or supplemented on an almost annual basis since they were created.

The regulations are one of the important pieces of legislation which apply not only to employees but to workers as well. This means individuals who are not strictly speaking employees may be covered, for example, sub-contractors working for a building company or couriers. Many temporary workers and freelancers are included but not the self-employed pursuing business activities on their own account.

Every worker, even if they do not meet the definition of an employee, is entitled to 5.6 weeks’ paid annual holiday and other rights under the WTR. Therefore, a casual worker on a short-term appointment should usually be paid for a pro rata amount of holidays or, if the appointment ends after a short time, they will be entitled to accrued holiday pay at the end of the appointment.

It is notoriously complex to ascertain if an individual is a ‘worker’ or not. Examples of individuals who were not workers include:

  • A labourer engaged on a self-employed basis was held not to be a ‘worker’ for the purposes of the WTR because there was no ‘mutuality of obligation’ (A.D. Bly Construction Ltd v Cochrane, 2005).
  • A self-employed painter and decorator working under the Construction Industry Scheme was also held not to be a ‘worker’ (Bacica v Muir, 2005).

However, there are many other cases where individuals have been found to be workers or employees, including those working in the building industry, those in limited liability partnerships and many of those engaged in the gig economy. Couriers and drivers for companies such as Uber and Addison Lee have mostly been found to be workers and entitled to rights under the WTR (see our Employment status Q&As).

Excluded workers

The WTR originally contained various exclusions which were progressively removed so that more workers came fully or partially into the scope of their scope. The position should always be checked very carefully with respect to the categories of worker summarised below.

The current types of workers which may still be wholly or partially excluded from the WTR include those involved in:

  • seafaring
  • sea fishing
  • inland waterways
  • rail industry
  • civil aviation
  • long-haul and public transport
  • offshore work
  • shift work – especially those in the process of changing shift
  • domestic work in private households
  • armed forces and the police
  • doctors in training.

Workers whose activities are affected by a foreseeable surge of activity may be partially exempt. Although ambulance personnel, firefighters and prison staff are covered by most of the Regulations, there may be a partial waiver to deal with emergencies.

Different types of worker have different exemptions from the WTR. For example, a worker may be exempt from the daily and weekly rest break rules but will still be subject to the maximum working week, the maximum duration of night work and annual leave provisions.

Unmeasured working time

Workers who are free to set their own hours are seen as being able manage their own pressures and are exempt from the working time limits and rest break provisions. Some senior managers and executives who genuinely have control over their own working time are entitled to paid holidays but don't receive other working time rights. 

The WTR protect workers from risks of working excessively long hours or working without breaks or holidays. Providing the worker qualifies, the main rights for adult workers are summarised below. 

The regulations provide for:

Weekly working time: a maximum average working week (including overtime) of not more that 48 hours.

Annual holiday: a minimum of 28 days (or 5.6 weeks) paid annual leave. 

Rest breaks: a 20-minute uninterrupted unpaid rest break in any working day over six hours.

Daily breaks: a guaranteed minimum daily rest period of 11 consecutive hours in every working day or 24-hours.

Days off: a guaranteed minimum of 24 hours rest every seven days (one day off per week or 48 hours off per fortnight). This rest period does not have to be, or include, a weekend. 

Other rules cover young workers, night shifts and a free health assessment for night workers. 

Under the WTR, ‘working time’ means any period when the individual is working at the employer’s disposal and carrying out their duties. Employers should remember that different rules about working time may apply (for example, minimum wage rules also use the concept of working time to assess if the minimum wage is being paid).

For the WTR working time includes:

  • any period during which the employee is receiving job training
  • travel time during the working day (for example, the journey between two clients)
  • business lunches
  • time spent waiting at the place of work for work to be allocated
  • time spent working away from home
  • time on call at the workplace.

Working time also includes attending meetings at the workplace in the capacity of a trade union or health and safety representative.

Working time does not include:

  • time resting at the end of the working day, even if the worker is required to stay away from home overnight
  • lunch breaks when no work is done
  • time spent on call when away from the workplace and not carrying out duties (see the on-call section below).

The journey to or from the workplace and home is generally not included in working time, although this position is different for peripatetic workers (see the ‘Travelling time’ section below).

Periods of paternity, adoption and parental leave count towards working time for the purposes of the Regulations.

Maximum working week

The maximum limit of 48 hours on the maximum working week is one of the best-known provisions of the WTR. An employee may work more than 48 hours in a given week, provided that the average weekly working time over a set reference period does not exceed the prescribed 48 hours.

Breaches of the 48-hour limit can result in a fine on the employer from the Health and Safety Executive but not compensation for the worker (see the section on ‘Enforcement and compensation’ below).

Reference periods  

The usual reference period is 17 weeks. Most workers can simply add up their working hours over the last 17 weeks and then divide this by 17 to work out their average hours. 

If a worker is sick, or on holiday, during the 17-week rolling reference period, the period must be calculated a week or more earlier, so that there are 17 weeks of actual working days.

Some groups of workers should use a 26-week period instead. These include:

  • certain shift workers
  • security guards, caretakers etc
  • workers who travel long distances to work
  • workers in hospitals, prisons, docks, airports, post and telecommunications, civil protection, agriculture, and utilities involving continuity of service or production
  • workers affected by seasonal increases such as tourism and agriculture.

If a worker has worked for under 17 weeks, then their actual working time is used to work out the average hours.

The holiday pay reference period for seasonal, casual and zero hours workers increases to 52 weeks in April 2020 (see our Recent and forthcoming legislation timetable).

One of the trickiest aspects of working time is how to treat time on call. 

On-call time is where workers may be required to be physically present at work, and/or available to provide the appropriate services, but may include some periods when they are not actually working. So:

  • Time on call spent away from the workplace, when the worker is free to pursue other activities, is generally not working time.
  • Time on call at the workplace, in accordance with an obligation to be present and available, is generally regarded as working time. 

Despite long-awaited changes, the current position is that an employer should count time spent on call at the workplace as working time. The leading important cases concerning doctors and on-call time are Simap v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (2000) and Landeshauptstadt Kiel v Jaeger (2003).

The European and UK courts have ruled that, where a worker is obliged to be present and available at work during on call time, this time must be regarded as working time. 

However, time spent away from the workplace on call, during which the worker is free to pursue other activities, is probably not working time. The Jaeger case confirmed that on-call duties, performed by doctors required to be physically present in the hospital, but who were permitted to rest in rooms provided for them during periods when their services were not required, still constituted working time in its entirety.

In the case of Ville de Nivelles v Matzak (2018) the court confirmed that a volunteer firefighter who had to be on standby to be at work within eight minutes constituted working time. Stand-by time spent at home is still working time if the employer puts geographical and time constraints on the worker which limit their opportunities to pursue other personal interests. 

If it is impossible for the worker to choose where they want to be, then the stand-by working hours will be normal working duties.

Despite the clear points above, other on-call issues are how much workers should be paid and how to treat time that the worker is actually asleep. These issues are complex and are still not entirely resolved (see ‘Should an employer count sleep-ins as ‘working time’ and be paid in accordance with the NMW?).

Some travelling time under the WTR counts as working time and some does not. The general rule is that working hours includes any time when the worker is ‘at the employer’s disposal’ and is therefore expected to carry out activities for the employer.

Employers must be aware that different rules apply to different types of workers and the rules are different again for the purposes of the National Minimum Wage regulations.

Workers with a fixed place of work 

For most workers their travel time to and from work is not counted as working time, but travelling time as part of the employee’s duties is counted.

This applies to those who are assigned to a fixed or habitual place of work, not peripatetic or mobile workers such as those in the care sector. 

Peripatetic workers

For workers who travel from home at the start of the day to the premises of a customer and return home from the premises of another customer at the end of the day, this travelling time does count as working time. This is as well as the travelling time between customers (see Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL CJEU 10 September 2015).

Time spent by a carer travelling to the first care visit and travelling home from the last care visit historically had not been counted as ‘working time’ in the UK. However, the predominant view now is that all the travelling time for these workers should count as working time because the workers are at the employer’s disposal during these journeys and can’t use that time freely to pursue their own interests.

Organisations that engage peripatetic workers, such as those in the care sector, sales people, utility engineers, maintenance workers and some delivery drivers, should be careful to ensure overall working time and rest breaks are adequate. 

Employers may consider scheduling early and late appointments at sites close to employees’ homes to reduce the amount of travelling time. If organisations can ask staff to attend an office first at the beginning and end of the day then the peripatetic workers’ rules will not apply. 

The rules about peripatetic workers are only about hours of work and do not necessarily mean the workers are entitled to be paid the National Minimum Wage for travelling time (for information about payment see ‘Must employers pay workers the national minimum wage during travel between home and work?’).

Opting out of the 48-hour working week has always been permitted in the UK – effectively workers can agree in writing that the limit on the working week does not apply to them – but there is no similar ability to opt-out from the daily rest break or other provisions in the regulations. The ability to opt out of the working time provisions was originally intended only to be temporary but the UK always vetoed any attempt to remove opt outs so that workers can work longer hours.

However, employers must not insist that all workers opt out of the average weekly working time provisions when they sign their initial employment contract, or at any other stage. There also cannot be a collective or workforce agreement stating that all workers agree to opt out. 

An individual worker can enter into an agreement, in writing, with their employer to opt out of the 48-hour limit (note that it must be in writing) so organisations are permitted to ask workers, if they consent, to sign an individual opt-out. 

It is possible to have an express opt-out provision in the main body of the employment contract if both employer and employee agree. Employers often include an opt-out provision as part of the initial agreement with the worker, on the basis that the worker is unlikely to refuse to sign it at the outset of the relationship, particularly if they really want the job. However, workers can opt back in by giving not less than seven days’ notice in writing (if they know about this right, which many do not).

The agreement cannot require the worker to give more than three months’ notice of opting back in. In practice many employees opt out when they sign their initial contract and never exercise their right to opt back into a 48-hour working week.

Employers must not penalise, victimise, discipline, dismiss, select for redundancy, or subject a worker to any other detriment for refusing to sign an opt-out agreement. If an employee was dismissed for refusing to sign an opt-out clause, this would be an automatically unfair dismissal (which doesn’t need two years’ service).

Young workers can’t opt-out and separate rules apply to seafarers, air cabin crew, road and waterways transport workers.

Travelling time and opt-outs

Including travel time in the ‘working time’ calculation may result in certain staff exceeding the 48 hour a week limit. If so, employers can ask workers to agree to opt-out of the 48-hour limit, if they haven’t already done so.

Although it is inadvisable, some employers permit staff to work more than 48 hours per week including the travelling (without a valid opt-out) which risks staff bringing WTR claims. 

However, the inclusion of travelling time may also result in workers losing their 11-hour rest break between shifts, and workers cannot opt out of rest breaks.

Adult workers (aged 18 and over) whose daily working time is more than six hours long are entitled to an uninterrupted rest break of 20 minutes. If the working period is up to, and including, six hours, then the worker has no legal entitlement to a rest break unless the employer offers this voluntarily.

The statutory rest break must be taken during working time (in other words, not at the start or the end of a shift).

The break period can be varied under the terms of a collective or workforce agreement, provided the employer undertakes to provide equivalent periods of compensatory rest. Organisations cannot reduce the period by making an individual agreement with any worker.

The Working Time Regulations do not make any provision regarding payment for such breaks; this is a contractual matter.

Daily rest 

Adult workers (aged 18 and over) are entitled to a minimum daily rest period of 11 consecutive, uninterrupted hours.

Weekly rest 

Workers also must have an uninterrupted minimum weekly rest period of not less than 24 hours (although this can be aggregated to one uninterrupted rest period of 48 hours a fortnight).

Excluded workers

Some workers may not be entitled to rest breaks and daily and weekly rest periods. The exclusions include jobs where there is a need for continuity of service or production, such as some offshore workers, security guards, hospital, residential, airport, dock or prison workers, as well as some of those in media, postal, telecommunications, transport and some public services. Another important set of workers who are exempt are those whose working time is unmeasured, such as managing executives who are exempt from some of the elements of the WTR.

Most employers know if their sector attracts special working time rules, however in any sectors where there’s shift work, a need for continuity of service or production, or a foreseeable surge of activity, special rules may apply.

Enforcing rest breaks

Does an employer have to ensure workers take rest periods or just enable them to do so if they wish? 

Employees do not have to take their breaks, but employers must not prevent them from doing so. The employer’s duty is to make a rest break possible. Adopting practices which make it impossible to take a rest break will mean that the organisation has breached its duty.

The best course of action is to ensure that workers do observe their rest periods. Although employees cannot be forced to take breaks, case law says that employers should be proactive and encourage employees to take breaks.

Compensatory rest

The WTR provide that if one of the special cases applies, the workers are entitled to an equivalent period of compensatory rest.

Case law has confirmed that:

  • If one of the special categories of worker is required to work during a period that should have been a rest break, the worker should take an equivalent period of compensatory rest.
  • Compensatory rest does not need to be exactly the same length of time as a rest break under the regulations, provided it is a break from work and lasts for at least 20 minutes in aggregate.
  • Employers must make the period as close as possible to a rest break, for example, by allowing the worker to restart the rest break if interrupted (see recent case law: Network Rail Infrastructure v Crawford, 2019).

If there is a collective or workforce agreement, adult workers’ rest breaks and rest periods can be varied, as long as the employer provides equivalent periods of compensatory rest. However, workers cannot opt out of statutory minimum rest entitlements individually.

The WTR defines young workers as those under the age of 18 and a child as anyone who has not yet reached the minimum school leaving age of 16.

Children:

  • can only work a maximum of 12 hours a week during term time
  • a maximum of two hours on school days and Sundays
  • a maximum of five hours on Saturdays for 13 to 14-year-olds, or eight hours for 15 to 16-year-olds.

Young workers:

  • cannot work more than 40 hours per week
  • cannot work at night
  • must have a continuous break of 12 hours consecutive rest between their shifts (though this can be split in some special situations)
  • must have a two-day break every week (in certain jobs, a young worker’s weekly time off can be reduced to 36 hours provided they get compensatory rest)
  • should get a break of 30 minutes if their working day is over four and a half hours.

The ban on young workers working at night means between the hours of 10pm and 6am, or between 11pm and 7am. Young workers may work at night if they are employed in hospitals or similar establishments, or in cultural, artistic, sporting or advertising activities.

Further exceptions apply if young workers are employed in agriculture, retail, postal or newspaper delivery, catering, hotels, restaurants, pubs, bar and bakeries. Other exceptions include where there is a need for continuity of service or production.

There is government guidance on Child employment, which includes information on age limits and hours.

Where an employer has failed to give a worker their entitlement under the WTR, the regulations provide that a tribunal can award compensation it considers just and equitable, taking into account the extent of employer’s failure and any loss suffered by the worker. Compensation is potentially unlimited although it is based on loss.

Compensation for failure to provide rest breaks can include an award for personal injury but not an award for injury to feelings (see Grange v Abellio London Ltd, 2017).

A worker may complain to a tribunal where the employer ignores rights under the WTR, or dismisses a worker, or subjects them to any other detriment as a result of insisting on their rights. Other sanctions include:

  • a criminal fine
  • improvement or prohibition notices issued by the Health and Safety Executive.

Tribunal claims under the WTR must be presented within three months. If a rest or leave period extends over more than one day, the time limit starts when the rest period or leave should have been permitted to begin. Where it is not reasonably practicable for a complaint to be presented within three months, there may be an extended period to claim, based on what the tribunal thinks reasonable.

If an employee has more than one job, both employers are responsible for enforcing the 48-hour week. The logical approach for an employer is to ask each worker if they have any other employment and adjust working arrangements accordingly.

If one of the employers discovers that the employee is working more than an average of 48 hours a week, the employer can ask the employee whether they wish to sign an opt-out agreement.

If the employee declines to sign an opt-out, the employer must take all ‘reasonable steps’ to remove the health or safety risk. For example, this could mean informing the other employer that the employee is exceeding the 48-hour limit or asking the employee to reduce the number of hours being worked. The priority is to protect the health and safety of all workers by ensuring there is no danger to anyone.

Employers currently do not have to pay workers the National Minimum Wage during travel between home and work, unless their contracts say they must.

Unless the National Minimum Wage Regulations 2015 are changed (or there is a collective agreement or contractual obligation on pay for travelling time) employers can currently choose how much to pay employees for the travelling time at the start and end of the day.

However, employers should be aware there is a potential legal argument that peripatetic workers should be paid the NMW for travelling time between their home and their first and last appointments of the day.

Under the NMW regulations, travelling time between work and home does not have to be included when calculating if employees are adequately paid. Therefore, normal commuting time to a fixed place of work does not have to be included when calculating whether the NMW has been paid for the hours worked. 

It is not entirely clear if the position is different for mobile workers travelling to and from a client, under the Working Time Regulations. But the following is clear:

  • Workers with no fixed, or usual, place of work, are treated differently for the purposes of working time (not pay). 
  • For these workers, travel between home and the first and last customer of the day counts as working time. 

But the WTR is not concerned with payment, therefore paying the NMW during this travelling time is different from counting the periods as working time.

It appears that employers can set the wages these workers receive for their travelling time at the start and end of the day. If the contract clearly states that no payment will be made for this time, this is likely to be a valid term (see Thera East v Valentine, 2017). 

Future case law or legislation could decide that workers with no fixed workplace are on duty from the time they leave their home and must therefore be paid the NMW. 

The issues about the minimum wage only apply in the UK as there is no EU right to a minimum wage.

The safest practice currently is for employers to keep a record of all hours worked by all their workers each day. This is to show that the limits on the 48-hour average working week, night work and provision of health and safety assessments, are being complied with. 

Under the WTR employers must keep adequate records for two years to show:

  • all opt outs from the 48-hour maximum working week
  • that limits on maximum weekly working time, night work and working hours of young workers are being kept
  • that health assessments for night workers and young workers are being met.

The WTR do not specifically require employers to keep a record of actual hours worked. However, case law from the ECJ has clarified that employers should keep records of actual time worked by their workers. This is because without reliable records of working hours and rest periods, it is difficult for workers to challenge any alleged breaches and for courts to decide claims (see 'Recent case law' below: Federacion de Servicios de Comisiones Obreras v Deutsche Bank SAE, 2019.)

All EU member states, including the UK, can use whatever specific arrangements they like to implement a system for requiring employers to record hours worked. The system should be an objective way of measuring the time worked each day. But it appears that the UK legislation did not implement the Working Time Directive properly because the actual number of working hours, including paid and unpaid hours, should be recorded, not just the average.

Recording hours post-Brexit

Public sector workers can enforce some EU law directly, but private sector workers cannot.

Although the guidance on recording working hours comes from EU case law, a UK court or tribunal may still decide that the WTR can be interpreted similarly, if that would help decide the case. A UK case could decide that adequate WTR records means a full record of actual daily working hours. 

Brexit makes everything uncertain, but employers should think about reviewing recording working time processes to see if they can keep a record of actual daily working time for each worker.

EU case law and guidance are likely to remain relevant because the Withdrawal Act says that relevant EU law will be imported into UK legislation. Regulations like the WTR will continue as they are, unless there is new legislation. 

Even failed attempts at tribunal cases are time consuming and expensive for employers to defend. Bearing this in mind, the safest course of action is for employers to keep a detailed record of time worked by all workers, including both normal working hours and overtime. This is a cautious approach to take, in the absence of government guidance.

Practical steps

Many employers already record hours worked each day by each worker, including any normal working and overtime hours. Employers with hourly-paid workers will clearly keep records of time worked already. For these employers no changes will be necessary.

Employers of salaried employees are taking the least risky course if they keep records of actual hours too. Organisations may already track working time by requiring employees to log into their workplace, or computer, so they have a record of who is in the building. This information may be evidence of working hours.

Organisations that do not already have objective, reliable and accessible systems that accurately record the numbers of hours worked by all staff should at least consider introducing a system. If they do not wish to do this, they will need to assess to what extent they are at risk of claims.

Opted-out employees

Where a worker opts out, there are more record keeping requirements. Employers should keep a record of the names of those who have opted out and the number of hours worked by that worker during each reference period. Employers should also keep copies of the signed opt-out agreements.

As this is only a record of hours worked during the 17-week reference period, this would not be adequate to show compliance with rights to daily and weekly rest breaks.

Some employers, such as those in the social care and mental health sectors, employ overnight care workers who may sleep in at a nursing home, or a private home, to be available to cover night time emergencies. Doctors may undertake sleep-ins too. Legal issues arise concerning sleep-ins and whether night-time hours should be paid at the National Minimum Wage rate.

What should an employer count as ‘working time’ depends partly upon which legislation applies. The regulations and case law that applies to whether there is working time for the WTR are different to the rules governing if the NMW must be paid to workers sleeping in at work.  Employers may need to decide whether sleeps-in count for NMW purposes or to check actual working hours.

Basic position

Working hours 

The on-call duties of workers who are required to be physically present at the workplace constitute working time when counting hours of work, even when that time was spent sleeping. This principle was enshrined in the leading ECJ cases, known as the SiMAP and Jaeger rulings, and confirmed in UK case law.

Minimum wage

For the NMW, the basic position is that an employer does not need to count sleeping time as working time for the purposes of payment, unless the employee is required to be awake and participating in activity.

Government guidance

Because the area is complex, the government issued guidance in 2016 on sleep-in payments. This made matters worse, as it said sleep-ins did qualify for NMW payments. This meant that many employers in the care sector needed to make six years’ back payment at an hourly NMW rate with an estimated cost of £400 million in the sector.

The government’s Social Care Compliance Scheme was set up to help employers work out the cost of sleep-in back pay liabilities. This closed at the end of 2018.

In November 2018, the Department for Business, Energy and Industrial Strategy (BEIS) had to publish further guidance on Calculating the NMW for sleep-in shifts, taking account of a further Court of Appeal ruling that providers do not have to pay the NMW for sleep-in shifts.

Time spent on-call at home

Stand-by time spent at home within nearby travel of a workplace can also be working time. If a worker must be physically present at any place determined by the employer (even their own home) and be available to work at short notice, then that stand-by time is working time (see Ville de Nivelles v Matzak, 2018).

Current position

The normal practice when the NMW was originally introduced was that sleep-ins did not count as working time because people were asleep and not actually working. Care workers were paid a lesser flat rate of ‘on-call’ allowance. 

Eventually case law decided that workers on sleep-in shifts should have their hours counted for NMW purposes but only if they are required to be awake for the purpose of performing specific activities (see Mencap v Tomlinson-Blake and Shannon v Rampersad, 2018). However, the saga is not over yet as the union involved in the case will have a further appeal heard by the Supreme Court in autumn 2019, so further clarification may emerge then.

Until further clarification emerges, the current key points are set out below, but some of these points are subject to appeal:

  • on-call time spent sleeping is now generally considered working time
  • if an employee gets less than the NMW, they can demand the underpayments, which would be back-dated in the tribunal.

A distinction is generally made by tribunals between:

‘Working’ cases – in which the worker is required to work through the night as part of their core contractual duties. In these cases, the worker is deemed to be working throughout the whole night. These workers are not expected to sleep for all or most of a shift, even if there are occasions when they are permitted to sleep when not busy.  The NMW must be paid for the whole of the shift because the worker is in effect working all the time, even if asleep.

‘On-call’ cases – here the worker’s main job is separate and not carried out at the same time as the ‘on-call’ period, but the worker is required to sleep on the premises. In these cases, the worker is ‘deemed’ to be working when available for work. However, time during which the worker is provided with suitable facilities for sleeping counts as working time for the NMW only when the worker is awake and working. The minimum wage does not have to be paid for time the worker is permitted to sleep.  

However, if suitable sleeping facilities are not provided then NMW must be paid for the entire shift.

If a worker has core duties at night, then the whole period is likely to be working time. If work during the night is not an essential part of the worker’s job, the only actual ‘working time’ period will be when the worker is awake for the purposes of working. Mere presence at the place of work does not entitle a worker to the NMW for the whole shift.

To avoid these complexities, employers should check contracts to ensure the right wage is being paid.

HMRC has published a webinar which outlines different scenarios to help determine if the minimum wage is applicable to some or all hours worked during a sleep-in shift. Hopefully, the Supreme Court will give further clarification.

Network Rail Infrastructure v Crawford | CA | April 2019

[2019] EWCA Civ 269
Issue: Working time – compensatory rest

Facts

The appeal concerned the WTR daily rest break of an uninterrupted period of 20 minutes away from the workstation. This is excluded for some jobs in a range of sectors – including railway transport. 

In the excluded cases, the employer must allow the worker to take an equivalent period of compensatory rest where possible. If this is not possible, the employer should take other appropriate protection to safeguard the worker’s health and safety.

The key issue in this case was what ‘equivalent’ means. Network Rail allowed staff in remote locations to take numerous short breaks, that amounted to over 20 minutes, but did not send relief staff so that workers could take a 20-minute continuous break. Was this compensatory rest sufficient or did it need to be a 20-minute uninterrupted rest break?

Decision

The CA agreed that Crawford had numerous opportunities to take discontinuous breaks that aggregated to well in excess of 20 minutes. He could leave his workstation to go out onto the balcony, go to the toilet or the kitchen. These breaks were equivalent to (or better) than one 20-minute break.

Implications for employers

In roles which are exempt from the normal rest breaks under the WTR, equivalent periods of compensatory rest are allowed. This does not require an employer to show that the worker’s break consists of an uninterrupted period of 20 minutes, but the breaks may be given by aggregating shorter breaks. This only applies to the special categories of worker.

The intention behind the WTR is to provide periods of rest that maintain workers’ wellbeing. For employers operating in the exempt sectors, where continuity of service is necessary, shorter breaks may be aggregated to total 20 of minute provided workers receive the same benefits. Employers can use guidance or formal agreements to outline rest break provisions. 

Federacion de Servicios de Comisiones Obreras v Deutsche Bank SAE | ECJ |14 May 2019

[2019] CJEU C 55/18
Issue: Working time – recording daily hours

Facts

This case was brought by a Spanish trade union over Deutsche Bank’s lack of record keeping on working hours. The Spanish High Court decided to ask the ECJ for guidance on obligations to record working time.

The trade union argued that the bank should set up systems to monitor the time workers worked every day. Without such a system, the union said its representatives, and the workers themselves, could not reliably determine the hours they had worked, and whether working time rules and limits were being complied with.

The bank’s lawyers argued that Spanish law only required employers to use time recording systems for employees’ overtime, not their normal working hours.

The national Spanish court chose to seek a preliminary ruling on whether:

  • Spanish national law sufficiently enforced working time limits
  • all employers should be required to establish systems recording the actual daily working time worked by full time workers.

Decision

The ECJ stated that the Working Time Directive means employers need to have systems in place to record the number of hours worked, when the work was carried out, or the number of overtime hours worked. Workers need to be able to ensure their rights, such as minimum daily and weekly rest periods, are being upheld.

Implications for employers

This case is relevant in the UK because the WTR are also based on the Working Time Directive.

In summary, UK employers must choose either to keep a detailed record of time actually worked by employees or decide to take the risk of an employee bringing a claim. What employers should do in the future depends on whether the government introduces new legislation.

Under the current UK regulations employers must keep ‘adequate’ records of working time for each worker, showing that the limits on the 48-hour average working week, night work and provision of health and safety assessments, are being complied with. 

UK legislation

The ECJ decision suggests that the Working Time Directive was not correctly implemented by the WTR because it is not enough for employers to have systems of recording average working time and night work. Organisations should record the actual number of working hours, including paid and unpaid hours.

It is unlikely that the UK government will give further guidance on this issue at any stage during 2019.  In the absence of guidance, the safest course of action is for employers to keep a detailed record of time worked by all workers, including both normal working hours and overtime. 

Organisations should at least consider introducing a system which accurately records the numbers of hours worked by all staff. Otherwise there is a risk of claims.

Assessing the claims risk

Employers may consider that there are limited enforcement provisions under the regulations when dealing with working time issues. Most of the enforcement aspects relate to holiday rights.

There is a risk that a private sector worker could bring a tribunal claim about an employer’s failure to keep a detailed record of time actually worked, and a theoretical risk that a UK tribunal could also (at the moment) refer the matter to the ECJ. The risk is statistically unlikely as between 2011–2016, the UK courts only referred 16 cases a year to the ECJ. 

At the very least employers should continue to keep ‘adequate’ records to demonstrate compliance with the 48-hour average working work (for any workers who haven’t opted out) as well as adherence to limitations surrounding night work. To be more cautious, fuller records of actual hours should be kept.

Post Brexit

All ECJ case law from before the UK’s departure (including this one) will continue to be binding on UK courts and tribunals until there is new legislation or a decision of the Supreme Court. 

With respect to case law decided after Brexit, UK courts can choose whether to follow ECJ case law if they think it would help decide the case.

(For more on Brexit, visit our Brexit hub, and for earlier cases, go to our Case law on working time).

Brexit

The Working Time Regulations are in part EU-derived legislation, and the UK’s exit from the EU may have an impact on these rules. But the WTR are also UK law, and in the short term there may not be any changes. In the longer term, the government may amend them. Updates to the Working Time Directive may impact UK law if minimum basic employment protection is required as part of a trade agreement.

The rules which are likely change are those surrounding holiday entitlement and sick leave which have been changing as a result of case law for some time.

The rules that may be changed include:

  • the ability to reclaim holiday days following a period of sickness on holiday 
  • employee’s rights to annual leave accruing under the WTR while on long-term sick leave
  • compulsory and voluntary overtime, bonuses and results-based commission payments being taken into account when calculating an employee’s rate of pay during annual leave.

Regardless of Brexit, the government previously consulted on amending the WTR to reflect the fact that workers on sick leave accrue holiday or can carry it over or be paid in lieu. However, the government seems unlikely to prioritise these proposals at present.

(For more information on what Brexit may mean for employment law, visit our Brexit hub.)

Good work plan

Some of the draft legislation that eventually emerged from the government’s Good Work Plan will affect working time. The implementation periods vary, with some measures taking effect in April 2019 and 2020 and others on an unspecified future date. The following aspects affect working time:

  • Holidays and working time for seasonal, casual and zero hours workers – the holiday pay reference period increases to 52 weeks in April 2020. There will also be a holiday pay awareness campaign.
  • Vulnerable workers' enforcement rights – there will be a new state enforcement system for holiday pay – also a wider review the NMW and statutory sick pay.

Other issues

Previous government consultations have proposed numerous changes to the WTR, including proposals to allow a worker who is ill during the leave year, or ill during the period of leave, to carry forward up to four weeks of annual leave. Other past possibilities that could be revisited include:

  • Enabling employers to insist that leave that is unused should be taken in the current leave year if there is an opportunity to do so.
  • Restricting carrying forward of holiday accrued during sick absence to the basic four weeks’ leave entitlement and not the additional 1.6 weeks’ UK entitlement.
  • Enabling greater flexibility around the operation of statutory annual leave.
  • Clarification of the period for which holidays can be carried forward.

Rapid changes in working patterns, gig economy workers, seasonal peaks, teleworking and other flexible working arrangements are all issues working time rules need to address. 

On-call time

How time spent on-call but in the workplace should be treated is a problem area (see ‘Should an employer count sleep-ins as ‘working time’ and be paid in accordance with the NMW? above).

Possible future interpretations of ‘working time’ include:

  • On-call time could be split into ‘active’ and ‘inactive’.
  • ‘Active’ on-call time would count as working time.
  • ‘Inactive’ on-call time would not be counted as rest time, but could count as working time. 
  • There could be a new maximum working week of say 65 hours for those workers who opt out where ‘inactive’ on-call time is counted as working time.

Opt-out

The ability to opt-out of the 48-hour working week under a clause in the Working Time Directive has been a contentious issue for decades.

Following any UK departure from the EU, the ability to work longer than a 48-hour working week seems set to continue. As the UK (and some other EU countries) have always preferred to keep the opt out, it seems likely that there would not be consensus to remove opt outs anyway.

Case law

The recent focus of important case law decisions in both the UK courts and the ECJ addresses elements of holiday pay (see the Annual leave and holiday pay Q&As).

For example:

  • how holiday pay is calculated, based on all aspects of remuneration (for example, commission and certain forms of overtime payments, not just basic pay)
  • long term back pay claims
  • how holiday accrues during sick leave.

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