Overview

The main regulations are:

These implement the provisions of the EC Working Time Directive (WTD). The Working Time Regulations (WTR) have been subsequently amended or supplemented on an almost annual basis by domestic regulations. A full list of the legislation affecting working time is given at the end of these Q&As.

The Working Time Regulations 1998 (WTR) are one of the important pieces of legislation which apply not only to employees but to workers as well. This means that the rules governing working time could apply to individuals who are not strictly speaking employees, for example sub-contractors working for a building company.

‘Workers’ includes individuals who personally perform work or provide personal services to another, except those who are in a client or customer relationship (Employee status Q&As).

For example, every worker (even if they do not meet the definition of an employee) is entitled to 5.6 weeks’ paid annual holiday. 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 a notoriously complex question to ascertain if an individual is a ‘worker’ or not and this is an area where careful legal advice should be taken if you are in doubt:

  • Because there was no ‘mutuality of obligation,’ a labourer engaged on a self-employed basis was held not to be a ‘worker’ for the purposes of the WTR in A.D. Bly Construction Ltd v Cochrane (2005).
  • For similar reasons, a self-employed painter and decorator working under the Construction Industry Scheme was also held not to be a ‘worker’ in Bacica v Muir (2005).
  • It therefore appears there must be some ‘mutuality of obligation’ between the parties as a prerequisite for establishing worker status or employee status. This was considered by the EAT in three separate cases in 2005 (Younis v Trans Global Projects Ltd (2005), Khan v Checkers Cars Ltd (2005) and Cotswold Developments Construction Ltd v Williams (2005)).
  • In Premier Groundworks Ltd v Jozsa (2009) the Employment Appeal Tribunal (EAT) held that an individual who had a right to delegate their contractual obligations to someone else was not a ‘worker’ as defined in the WTR. An additional reason why the claimant was not a ‘worker’ was that he sent invoices to the company, which was effectively a customer of a business carried on by him, and he also provided services to other building companies.
  • In Boss Projects Ltd v Bragg (2013) the EAT found that the working relationship made the claimant a ‘worker.’ The contract clearly stated that he was self-employed, and was not an employee or worker of the company. It explicitly provided no entitlement to holiday or sick pay and rendered the claimant liable for his own tax and national insurance. There was also an indemnity from the claimant to Boss Projects Ltd for any costs arising out of tribunal claims regarding his worker status. The contract further stated that the claimant was in business on his own account; could substitute another worker for himself; that there was no mutuality of obligation and that neither Boss Projects nor its client controlled his working practices. However, the actual working relationship was quite different. He was expected to do the work personally and would not be permitted to provide a substitute.
  • Other cases on whether individuals are workers or employees include those on limited liability partnerships: Tiffin v Lester Aldridge LLP (2012) (a lawyer with a fixed share of the profits was not an employee); Clyde & Co LLP v Bates van Winklehof (2012) (an LLP member was not a ‘worker’). By contrast a part-time judge was found to have worker status in O’Brien v Ministry of Justice (2010), and a dancer was held not to have employee status in Stringfellow v Quashie (2012).

Under the Working Time Regulations 1998 (WTR) ‘working time’ means any period during which the individual is working, is at the employer’s disposal and is carrying out their duties. It 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 (see below).

It appears that working time also includes attending meetings at the workplace in the capacity of a trade union or health and safety representative (Edwards v Encirc Ltd (2015)).

It 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 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 Can travelling time count as working time for the purposes of the Working Time Regulations?).

Problems with on-call time

One of the main problems with the definition of working time comes from the treatment of on-call time. 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.

The legislation does not clarify the concept of on-call time, or different types of on-call time. The tribunals and courts have provided some guidance.

European Court of Justice case law makes a distinction between time spent on-call:

  • at the place of work, and
  • away from the work place.

On-call time: Current position

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 cases concerning doctors and on-call time are Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (2000) and Landeshauptstadt Kiel v Jaeger (2003).

The European Court of Justice 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 on call spent away from the workplace during which the worker is free to pursue other activities is not working time. The Jaeger case confirmed that on-call duty, performed by doctors required to be physically present in the hospital, 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 (see Future developments).

National Minimum Wage and on-call time

Issues can arise concerning whether night-time hours should be paid at the NMW. There are many decided cases and the position can seem slightly different in each one. However, a distinction is made between:

  • ‘Working cases’ – the worker is required to work through the night as part of their core contractual duties. In these cases, the worker is considered to be actually working throughout the whole night for the purposes of calculating entitlement to the NMW.
  • ‘On-call’ cases – 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 only when the worker is awake and working.

As a general guide, 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. The decided cases have very subtle differences, but mere presence at the place of work does not entitle a worker to the NMW for the whole shift.

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’. Working time therefore means time when the worker is expected to carry out activities for the employer. Travel time to, and from, work has historically not been counted as working hours, but travel as part of the employee’s duties is counted.

In many situations the position is more complex. For example, different rules apply in the case of peripatetic workers and are different again for the purposes of the National Minimum Wage Regulations. If travel time ends up being counted as travelling time this does not necessarily mean that the employer has to pay the national minimum wage during the travel time as well.

Peripatetic workers

In the UK, the time spent by a carer travelling to the first care visit and travelling home from the last care visit has never been counted as ‘working time’ for the purposes of the Working Time Regulations.

However, the predominant opinion under EU law is that all the travelling time should count as working time.

Employers who do use peripatetic workers, such as those in the care sector, should carefully ensure overall working time and rest breaks are adequate and do not breach the law. Employers may consider scheduling early and late appointments at sites close to employees’ homes to reduce the amount of travelling time.

Case law

Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL (Case C-266/14, 10 September 2015): The European Court of Justice decided that a peripatetic worker who has no fixed or habitual place of work, who has spent time travelling to the first customer and from the last customer back home, should have that travelling time classed as ‘working time’ as well as the travel between customers.

For the employee to be considered as ‘working,’ the travel must be integral to the work and the employee must be:

  • at the work place,
  • at the disposal of the employer, and
  • carrying out activities or work duties.

Overall it was held that the specific travel time, to and from home and customers’ sites was working time under the Directive.

National minimum wage

Travel time may be working time for the purposes of the European Working Time Directive and the UK Working Time Regulations 1998 but this is different from other legislation. While some travel time may count as working time it does not necessarily have to be paid in the same way as working time.

Under the National Minimum Wage Regulations there is an express exemption which avoids counting travelling time to and from the place of work when calculating if employees are being paid adequately. So while employers may have to reduce the working day to ensure that a worker’s travelling time does not take them over the maximum working week, it may not be necessary to pay the national minimum wage during the travel time as well unless there is a further legal challenge.

Opt-out

Opt-outs are still permitted in the UK, Employers can use clauses to opt-out of the Working Time Directive requirements for a 48-hour working week.

The 48-hour week is one of the best-known provisions of the Working Time Regulations 1998. The average weekly hours figure is calculated over a prescribed reference period, usually 17 weeks. Regulation 4(1) states ‘a worker’s working time, including overtime, in any reference period, shall not exceed an average of 48 hours for each seven days.’

An employee may work more than 48 hours in any given week, provided that the average weekly working time over the reference period does not exceed the prescribed 48 hours.

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

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 agreement, 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.

Regulation 12(5) of the Working Time Regulations 1998 Regulations states that if a young worker is employed by more than one employer, the daily working time must be aggregated, but other than that the Regulations do not expressly cover what happens where a worker has more than one employer.

Employers must not insist that all workers opt out of the average weekly working time provisions when they sign their initial employment contract/agreement or at any other stage. However, employers can ask employees if they wish to do so.

An individual worker can enter into an agreement at any stage with their employer to opt out of the 48-hour limit. It must be in writing. 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 the worker really wants the job. It is therefore possible to have an express opt-out provision in the main body of the contract of employment if both parties agree.

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.

The ability to opt out of the working time provisions was originally intended only to be temporary. For more on the current position and possible changes, see Future developments at the end of this Q&A.

No.

Employers are merely required to keep a record of the names of those who have opted out without recording the actual hours. Employers should also keep copies of the signed opt-out agreements.

For workers who have not opted out, keep records to show that you have complied with the provisions on maximum weekly working time. These records should be kept for two years.

This is an area where the current position should always be checked very carefully. Legal advice should always be taken with respect to the following categories of worker.

The Regulations originally contained various exclusions. However, these have been progressively removed so that more workers are brought either fully or partially into the scope of the WTR.

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.

The current types of workers which may 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.

The 28 days’ paid annual leave is not additional to bank holidays. Accordingly the customary eight bank holidays can go towards meeting the employee’s 28-day working time entitlement.

Despite the bare minimum legal position, many employers are expected to give bank holidays in addition to the increased 28-day entitlement (although they don’t have to).

See also Is there a statutory right to paid leave on bank holidays or public holidays? in our Bank holidays Q&As.

Yes. Rolled up holiday pay is where an element of holiday pay is added to the hourly or daily rate of pay, rather than being paid at the time of the holiday. Employers who had operated a system where holiday pay is paid as part of a rolled-up rate (for example those in the construction, manufacturing and education sectors) had to abandon this practice following Caulfield v Hanson Clay Products Ltd (2006).

The ECJ held in the three joined cases on this issue that ‘rolled up’ holiday pay is unlawful under the Working Time Directive (WTD). This is the case even if it is clear and transparent in the contract of employment what proportion of the rolled-up pay is holiday pay. Employers should adopt a system which ensures that workers are paid in respect of specific periods of leave, to ensure they take their annual leave entitlement under the Working Time Regulations rather than rolling up the holiday pay.

Yes, if the contract of employment contains an express provision providing for the worker to compensate the employer by payment or otherwise. If there is no provision in a contract or relevant collective agreement, it will not be implied and such a deduction will be an unauthorised deduction from wages.

Yes, the normal rules under the Working Time Regulations are:

  • that a worker has no automatic right to carry untaken holiday forward to the next year, and
  • if they do not take holiday, they cannot claim pay in lieu, but
  • once employment has ended the worker is entitled to holiday pay for holiday they have not taken.

If the worker had not taken their full statutory holiday entitlement from previous years before the final leave year they cannot claim this back holiday pay.

See also:

  • What issues arise concerning holidays and holiday pay during sickness absence?
  • What is the minimum amount of annual leave which an employer must provide to all workers?

Yes. This is the case even if the holiday year has expired and the holiday allowance has been carried forward to the next year.

Unless the contract provides otherwise, workers can take their statutory holidays on any day they choose by giving the requisite notice to the employer.

The length of notice of intended leave dates an employee should give their employer is often set out in either the contract of employment or employment handbook.

If there are not any such provisions, the statutory notice requirement in accordance with Regulation 15(4) is that an employee should provide notice of twice as many days as the length of leave that is to be taken. So if an employee required two week’s annual leave they should give four weeks’ notice.

Regulation 15(2) of the Working Time Regulations 1998 allows an employer to issue a counter-notice requiring the worker not to take leave on a particular day, provided that they give at least the number of days’ notice covered by the leave request. For example, where an employee requests two weeks annual leave and is required to give four weeks’ notice of the intended dates of absence, an employer who does not want to agree to this request would need to give at least two weeks counter-notice to the employee.

Adult workers (aged 18 and over) whose daily working time is more than 6 hours 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 as many employers do.

The statutory rest break period can be varied under the terms of a collective or workforce agreement, provided that the employer undertakes to provide equivalent periods of compensatory rest. Employers 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.

Adult workers (aged 18 and over) are entitled to:

  • A daily rest period of 11 consecutive, uninterrupted hours.
  • An uninterrupted weekly rest period of not less than 24 hours (although this can be aggregated to one uninterrupted rest period of 48 hours a fortnight).
  • A rest break of 20 minutes (if more than six hours worked).

Exceptions

There are also a number of special workers who may not be entitled to rest breaks and daily and weekly rest periods (for example those engaged in ‘security and surveillance activities’ requiring a permanent presence for example security guards). Another important set of workers who are exempt are those whose working time is unmeasured, such as managing executives who are exempt from all the main elements of the Regulations.

Enforcing rest breaks

Does an employer have to actually ensure workers claim rest periods or just enable them to do so if they wish? The best course of action is to ensure that workers actually do observe the rest periods. Employees cannot be forced to take breaks. However case law says that employers should be proactive and encourage employees to take breaks.

How far employers must go to enforce rest periods has been addressed by the courts.

Compensatory rest

The Regulations provide that if one of the special case or shift workers has to work during a rest break, they are entitled to an equivalent period of compensatory rest, ideally during the same or following day.

The Court of Appeal has confirmed that:

  • If a 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 as a rest break under the regulations, as long as it is a break from work and lasts for at least 20 minutes.
  • 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).

The Department for Children, Schools and Families has published a guide to employing children, which includes information on age limits and hours.

An employment tribunal provides a remedy where an employer has failed to give a worker their entitlement.

A worker may complain to a tribunal where the employer:

  • fails to grant a right or entitlement under the Working Time Regulations
  • dismisses an employee or subjects a worker or employee to any other detriment as a result of insisting on their rights under the Working Time Regulations
  • dismisses an employee for bringing enforcement proceedings under the Working Time Regulations or for alleging that the employer has infringed the employee’s rights.

If a worker wishes to bring a complaint under the Working Time Regulations, it must be presented before the end of the three months beginning with the date on which it is alleged that the right should have been permitted to be exercised or, in the case of holiday pay, the date on which it is claimed payment should have been made. 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 the period of three months, the complaint will be admissible provided it was presented within such further period as the tribunal thinks reasonable.

If the claim succeeds, compensation is unlimited.

The Working Time Regulations are EU-derived legislation, and the UK’s exit from the EU may have an impact on these rules.

Holiday entitlement and sick leave

The interrelationship between holiday entitlement and sick leave has been changing as a result of case law for some time.

It appeared likely that as a result of the litigation, the WTR would be amended. The government first consulted on amending the WTR in 2011 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.

The Modern Workplaces consultation proposed numerous changes to employment law, including plans to amend the WTR 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. Amendments to the WTR may provide:

  • for holiday to be carried forward in limited circumstances where a worker has been unable to take his annual leave due to sickness absence and it is not possible to reschedule the leave in the current leave year, they will be able to carry over annual leave into the following leave year
  • that where a worker has been unable to take their annual leave due to sickness absence and it is not possible to reschedule the leave in the current leave year, they will be able to carry over annual leave into the following leave year
  • that where a worker falls sick during scheduled annual leave they will be able to reschedule the annual leave at a later date, including carrying it over if it is not possible to reschedule in the current leave year
  • that the employer should be able to insist that leave that is unused should be taken in the current leave year if there is an opportunity to do so
  • for employers to require leave that is untaken due to sickness can be carried forward to the following leave year rather than being taken in the same year if there are good business reasons for this
  • for limitation on the impact of the EU decisions so that carrying forward of holiday accrued during sick absence will be restricted to the EU leave entitlement and not the additional UK entitlement
  • to amend the prohibition on ‘buying out’ any statutory leave under the WTR to allow employers to buy out the additional 1.6 weeks' annual leave entitlement
  • for greater flexibility around the operation of statutory annual leave
  • clarification of the period for which holidays can be carried forward.

Holiday pay

See Annual leave and holiday pay Q&As.

Working Time Directive

The European Commission may propose new working time legislation following an online public consultation in December 2014 asking how the Directive should be changed. It has indicated that it wishes to take a broader approach to the entire issue of work-life balance, in particular enabling employees with dependents to combine their working lives and family responsibilities more easily. This may still have an impact on the UK if any minimum employment protection is required as part of a trade agreement.

Opt-out

The ability to opt-out of the 48-hour working week under a clause in the WTD has been a contentious issue.

The UK has always wanted to retain its opt out and some EU Member States have always wanted to limit the working week to 48 hours with no ability to opt out. However, as 16 countries now use the opt-out, some other Member States wish to opt out too.

Until the UK leaves the EU:

  • the existing WTD remains in force
  • the UK gets to keep the opt-out of the 48-hour working week at present
  • a new proposal may be introduced in the next two years to change the WTD, if so changes may be required to the WTR (although realistically the right to opt out Is likely to be kept for the next two years).

Other issues

Other parts of the WTD have lagged behind rapid changes in working patterns. Today regulations must be able to accommodate seasonal peaks, teleworking and other flexible working arrangements. Some people may want to work a lot in their 20s then work less when they have families.

Other key issues are still:

  • on-call time
  • the timing of minimum rest periods
  • tackling excessive working hours
  • better reconciliation of work and family life, and
  • clarifying areas where the law appears unclear.

On-call time

How time spent on-call but in the workplace should be treated is a problem area (see How is ‘working time’ currently defined?).

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 be counted as working time if national laws or social partners agree. Compensatory rest (for missed rest) would therefore be taken within a reasonable period.
  • There could be a new maximum working week of 65 hours for those workers who opt out where ‘inactive’ on-call time is counted as working time.

Consultation

In December 2010 the EC adopted a further consultation paper asking workers and employers for their views on possible changes to the WTD. In November 2011 the social partners (including both employers and worker representatives) agreed to enter negotiations to revise the WTD. The social partners had very diverging views and an agreement was not reached, even though the negotiating period was extended to 31 December 2012. In default of agreement the European Commission issued an online public consultation in December 2014 asking how the WTD should be changed which may lead to proposals by 2017.

Case law

At present UK workers are given more holiday than required by EU law. However, as explained above various case law decisions of both the UK courts and the Court of Justice of the European Union have changed aspects of holiday law. For example:

  • how holiday pay is calculated based on all aspects of remuneration (e.g. commission and certain forms of overtime payments not just basic pay), and
  • how holiday accrues during sick leave.

The cost of providing paid holiday to workers has increased and employers have been confused about how holiday pay is calculated.

These are areas which may be changed following the UK’s exit from the EU.

Brexit

For information on what Brexit may mean for employment law, read the blog by our Public Policy Advisor (Employer Relations) and visit our resource hub.

The WTR have been subsequently amended or supplemented on an almost annual basis by domestic regulations:

  • The Working Time Regulations 1999 (SI 1999/3372)
  • The Working Time (Amendment) Regulations 2001 (SI 2001/3256)
  • The Working Time (Amendment) Regulations 2002 (SI 2002/3128)
  • The Working Time (Amendment) Regulations 2003 (SI 2003/1684)
  • The Working Time (Amendment) Regulations 2006 (SI 2006/99)
  • The Civil Aviation (Working Time) Regulations 2004 (SI 2004/756)*
  • The Merchant Shipping (Hours of Work) Regulations 2002 (SI 2002/2125)*
  • The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (SI 2003/3049)* (amending the Merchant Shipping Act 1995*)
  • The Road Transport (Working Time) Regulations 2005 (SI 2005/639)*
  • The Work and Families Act 2006 (for example, section 13)
  • The Road Transport (Working Time) (Amendment) Regulations 2007 (SI 2007/853)
  • The Working Time (Amendment) Regulations 2009 (SI 2009/1567)
  • The Working Time (Amendment) (No 2) Regulations 2009 (SI 2009/2766)
  • The Civil Aviation (Working Time) (Amendment) Regulations 2010 (SI 2010/1226
  • The Deduction from Wages (Limitation) Regulations 2014 (SI 2014/3322).

The original EC Working Time Directive has been supplemented by further EC Directives:

  • part of the Young Workers Directive (994/33/EC)
  • Horizontal Amending Directive (2000/34/EC)
  • Working Time Consolidation Directive (2003/88/EC)
  • EC Drivers’ Hours Regulation 1985 (3820/85/EC)
  • The Road Transport Directive (2002/15/EC)*
  • The Aviation Directive (2000/79/EC)*
  • The Seafarers’ Directive (1999/63/EC)*
  • The Seafarers’ Enforcement Directive (1999/95/EC)*
  • EC Drivers’ Hours Rules, Regulation (3820/95/EC).*

*Specific to certain previously excluded sectors, and not applicable to all employers.

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