| Title: Working Time Directive | Type of material: Original |
| Author: dti | Adapted from: dti guidelines on the working time directive. |
| Date written: 1999 | Date modified: n/a |
Taken from the dti Working Time Regulation guidance notes.
Also see the key points summary.
Sections:
Chapter 1 : Introduction
Chapter 2 : Working time limits ("the 48 hour week")
Chapter 3 : Night work limits
Chapter 4 : Health assessments for night workers, and other night
work provisions
Chapter 5 : Rest periods
Chapter 6 : In-work rest breaks
Chapter 7 : Paid annual leave
1.1 Status and purpose of the Guidance
This document provides guidance on the limits on working
time and the entitlements provided for in the Working Time Regulations
1998 (S.I. 1998/1833). The Regulations implement the EC directive
on the organisation of working time (the Working Time Directive)
and provisions concerning working time in the directive on the
protection of young people at work (the Young Workers Directive).
The document explains how the Regulations work and how an employer
may seek to comply with them - what questions they need to consider
and what action they should take.
The document gives only general guidance and should not be regarded
as a complete or authoritative statement of the law. Nor can it
cover every situation that may occur - employers will need to
take a view on how the Regulations affect their particular circumstances.
Readers should be aware that there are likely to be developments
in employment case law that affect the rights described.
1.1.1 Using the Guidance - What does
an employer need to do?
Employers should first consider whether workers are
within the scope of the Regulations. Section 1.2 explains whom
the Regulations affect. It is the employer who is responsible
for ensuring that the worker receives the protection provided
for by the Regulations.
Employers will need to consider whether their working practices
need to be changed in light of the rights conferred on workers.
The following chapters explain the rights and obligations under
the Regulations. These are summarised at 1.1.2. Each chapter has
a section highlighting some of the matters employers should consider
and an explanation of how the Regulations will work.
In considering these rights and obligations, employers will wish
to take account of the flexibilities which enable modifications
to be made in certain circumstances. In many cases these modifications
will need to be agreed between workers and employers. A new mechanism
to allow agreements to be made between workers and employers in
the absence of a recognised trade union is explained at 1.3.2.
1.1.2 Summary of the Regulations
The Working Time Regulations give rise to wholly new
rights and obligations relating to work and rest. The principal
provisions are for :
The Regulations also implement provisions of the Young Workers
Directive which relate to the working time of adolescents (those
over the minimum school leaving age but under 18). Other parts
of that Directive have been implemented by the Health and Safety
(Young Persons) Regulations 1997, the Children (Protection at
Work) Regulations 1998 and the Merchant Shipping and Fishing Vessels
(Health and Safety) (Employment of Children and Young Persons)
Regulations 1998.
The Working Time Regulations give adolescents rights that differ
from those given to adult workers. These relate to :
1.2 Coverage and Scope
1.2.1 Who is a worker?
In general a worker will be someone to whom an employer
has a duty to provide work, who controls when and how it is done,
supplies the tools and other equipment and pays tax and national
insurance contributions. However, these are indicators rather
than exhaustive or exclusive criteria. The majority of agency
workers and freelancers are likely to be workers.
The Regulations do not apply to the genuinely self-employed. Someone
is self-employed if they pursue a business activity on their own
account. Such people are likely to be paid on the basis of an
invoice or similar demand for payment, rather than receiving wages
from a party whose relationship to them is that of an employer
as opposed to a client or customer. Indications that someone is
self employed are that they decide whether or not to accept work,
how to carry it out, or are free to do the same type of work for
more than one employer.
The Regulations will also apply to trainees who are engaged on
work experience or training other than that on a course run by
an educational institution or training establishment. For example,
this would include those in National Traineeships or participating
in the New Deal who are not employed.
An adolescent worker is a worker who is above the minimum school
leaving age but under 18. In England and Wales a child can leave
school on the last Friday in June if they are 16 or will be 16
before the start of the next school year. In Scotland if a child
is 16 between 1st March and 30 September in the final school year
then they can leave school on 31st May; if a child is 16 between
1st October and the last day of February in the final school year
then they can leave school on the first day of the Christmas holidays.
The Regulations also apply in part to domestic servants. The rights
described in chapters 2 - 4, on working time limits, will not
apply to such workers. These workers will be entitled to the rights
to rest breaks, rest periods and paid annual leave (see chapters
5 - 7).
1.2.2 Who is the employer?
In general, a worker's employer will be obvious. In
the case of temporary workers supplied by an agency, who the employer
is will depend on the particular contractual arrangements in relation
to the worker. In the absence of a contract between the worker
and either the agency or agency's client, the employer is deemed
to be whoever is responsible for paying the worker, or, if neither
is responsible, which ever of them in fact pays the worker.
1.2.3 Excluded sectors
The Regulations, other than the provisions relating
solely to adolescent workers, do not apply to workers who are
employed in the following sectors:
The exclusions relate specifically to the sectors specified.
Employers will need to consider whether particular workers fall
within a sector or not. The location of the work, for example
a port, railway station, or airport will not necessarily mean
that those doing it are excluded. Furthermore, neither will workers
involved in the movement of goods or people to or from a mode
of transport ( for example, in docks or loading / unloading onto
/ from road vehicles) necessarily be excluded. Where workers are
directly involved in the operation of the sector, such as baggage
handlers, and signal and maintenance staff they are more likely
to be excluded from the Regulations, but where they are not (eg
construction workers at an airport) the exclusion is not likely
to apply.
There are sound reasons for maintaining that some "own account"
transport operations (for example, a retail chain operating a
fleet of vehicles to deliver goods to its own stores) are excluded
from the Regulations on the basis that they fall within the road
transport sector. Such operations will often be almost identical
to those undertaken by businesses operating for hire, which are
clearly excluded.
The Regulations also do not apply to the activities of doctors
in training - in effect covering the NHS training grades: pre-registration
house officer, house officer, senior house officer, registrar,
senior registrar and specialist registrar.
The European Commission has announced its intention to bring forward
proposals to extend rights to provide rest and limit working hours
for workers in these sectors .The Regulations also do not apply
to activities of specific services, such as the police or the
armed forces, or specific activities of the civil protection services,
where particular characteristics of the service or the activities
inevitably conflict with provisions of the Regulations. It will
be for such services to identify the activities which conflict
with the Regulations.
1.3 Agreements
1.3.1 What are the different types
of agreement?
The Regulations allow for some of the measures to be
adapted through agreements between workers and employers so as
to allow the flexibility to take account of the specific needs
of local working arrangements. Employers and workers will need
to agree which is the most appropriate agreement for their circumstances.
There are three types of agreement. These are:
Individuals may also choose to agree with their employer to
work in excess of the weekly working time limit (see 2.2.1).
1.3.2 Workforce agreements
The Regulations provide for a new mechanism for employers
to agree working time arrangements with workers who do not have
any terms or conditions set by a collective agreement. We have
called this a workforce agreement. This allows employers to agree
on how to use the flexibilities provided by the Regulations and
clarify other matters.
A workforce agreement may apply to the whole of the workforce
or a group of workers within it. Where it is to apply to a group
of workers, the group must share a workplace, function or organisational
unit within a business.
As a first step employers should determine at what level they
wish to make an agreement and then take steps to provide for representatives
of the workers to be elected to negotiate it. To arrange the election
of workforce representatives, the employer should:
No member of the workforce should be unreasonably be excluded
from standing as a candidate.
To be valid, a workforce agreement must:
It will be possible for an elected representative to be elected
for other purposes, for example as a "representative of employee
safety" under the Health and Safety (Consultation with Employees)
Regulations 1996. However, it would have to be made clear to those
voting that the representatives were being elected for both purposes.
1.4 What protection do workers have?
The mechanisms for enforcing the obligations and securing the
rights provided for in the Working Time Regulations are explained
in the chapters which follow. The Regulations also protect workers
from being discriminated against for asserting an entitlement.
This is referred to as "being subjected to a detriment".
A worker is protected against detriment imposed by the employer
on account of any :
Detriment can cover a wide range of discriminatory actions,
such as denial of promotion, facilities or training opportunities
which the employer would otherwise have offered or made available.
A reduction in pay commensurate with a reduction in working time
is not necessarily detriment, but an excessive reduction in remuneration
consequent upon a reduction in working time may be.
A worker would have a right to pursue a claim that they had been
subjected to a detriment through an Employment Tribunal.
The Regulations also extend protection from unfair dismissal to
any employee dismissed or selected for redundancy because of a
refusal to work at a time when entitled to a rest break / period.
The same protection would also cover anyone being forced to work
in excess of the working time limit. Protection from unfair dismissal
is only available to "employees", rather than the wider
group of "workers", as current legislation only provides
remedies against unfair dismissal for employees. However, in such
circumstances workers may claim for detriment as if they had been
unfairly dismissed on termination of their contract.
CHAPTER TWO : WORKING TIME LIMITS ("the
48 hour week")
2.1 What are the working time limits?
An employer is required to take all reasonable steps
to ensure that workers do not work more than an average of 48
hours a week over a 17-week period. This averaging period may
be extended in certain circumstances.
2.1.1 What does an employer need to
do?
Employers need to consider:
2.1.2 What is working time?
"Working time" is defined as when a worker
is "working, at his employer's disposal and carrying out
his activity or duties". For time to be "working time"
all three elements must be satisfied.
Time when a worker was "on call" but otherwise free
to pursue their own activities would not be working time, as the
worker would not be working. Similarly, if a worker is required
to be at the place of work "on call" but was sleeping
though available to work if necessary, a worker would not be working
and so the time spent asleep would not count as working time.
A lunch break spent at leisure would not be working time. If a
worker was obliged to participate in a working lunch as part of
their work then it would be working time. Time spent travelling
to and from a place of work is unlikely to be working time as
a worker would probably neither be working nor carrying out their
duties. A worker may well be doing both if they are engaged in
travel that is required by the job. If a worker spends time working
abroad, this time will count as working time for the purposes
of the Regulations.
Where a worker took work home, time worked would only count as
working time where work was performed on a basis previously agreed
with the employer.
The Regulations allow workers (or their representatives) and employers
to make agreements to add to the definition of working time if
there is doubt as to whether time counts as working time. For
example, an agreement may be made that any time spent by a worker
at their workplace was treated as "working time" even
if the worker were not necessarily working for all that time.
2.1.3 What about a worker with more than
one job?
Employers are required to take all reasonable steps
to ensure that workers do not exceed an average of 48 hours of
weekly working time. Such steps would include enquiring whether
the worker was working elsewhere (or requesting that they be notified
on a worker getting other work) and, if they were, adjusting working
arrangements accordingly. For example, if a worker was working
more than an average of 48 hours in total, the employer may wish
to agree with a worker that they are willing to do so.
2.1.4 How is the reference period determined?
The standard reference period is 17 weeks. This may
be set by a relevant agreement between workers and employers as
consecutive periods of 17 weeks; in the absence of such an agreement,
it will be any period of 17 weeks in the course of a worker's
employment (in effect a rolling reference period).
If a worker has worked for an employer for less than 17 weeks,
the reference period is the period worked to date. Thus, when
a worker has worked for four weeks, their average working time
should be calculated as an average over that period.
Under certain circumstances (see 2.2.3) the reference period
may be extended to 26 weeks. Workers and employers may also agree
under a workforce or collective agreement to extend the reference
period to a period of up to 52 weeks (see 2.2.4).
2.1.5 The calculation of average working
time
The average weekly working time is calculated by dividing
the number of hours of working time worked by the worker by the
number of weeks in the reference period.
The calculation of average weekly working time must take account
of periods where a worker is absent due to their annual leave
entitlement, sick leave, maternity leave or any working days that
are covered by an agreement in which a worker has consented to
work in excess of the weekly working limit (see 2.2.1).
If any such time falls within a reference period, extra time is
added to total hours worked to compensate for the absence. To
do this, add the number of hours worked in the first working days
after the reference period to the total of working hours. The
number of working days taken into account should be the same as
the number of days missed from the reference period.
If the reference period is set to start at a specific date by
an agreement, the inclusion of working time from the following
reference period does not affect the date on which the subsequent
reference period starts. The additional days are counted in both
the reference period in which the leave falls and the subsequent
one.
The average weekly hours can be calculated by using the equation
:
A + B
C
Where :
A is the total number of hours worked during the reference
period.
B is the total number of hours worked, immediately after
the reference period, during the number of working days equal
to the number of days missed due to annual leave entitlement,
sick leave and maternity leave; and
C is the number of weeks in the reference period.
Example 1 :
A worker has a standard working week of 40 hours and does overtime
of 12 hours a week for the first 10 weeks of the 17-week reference
period. No leave is taken during the reference period.
The total hours worked is:
17 weeks of 40 hours and 10 weeks of 12 hours of overtime
(17 x 40) + (10 x 12) = 800
Therefore his average (total hours divided by number of weeks)
:
800
17 = 47.1 hours a week
Therefore, the average limit of 48 hours has been complied with.
Example 2 :
A worker has a standard working week of 40 hours (8 hours a day)
and does overtime of 8 hours a week for the first 12 weeks of
the 17-week reference period. 4 days' annual leave entitlement
are also taken during the reference period.
The total hours worked in the reference period is :
16 weeks and 1 day (of 40 hours a week and 8 hours a day) and
8 weeks of 12 hours of overtime
(16 x 40) + (1 x 8) + (8 x 12) = 744
To this must be added the time worked for the 4 days of his annual
leave entitlement. In the first 4 working days after the reference
period the worker does no overtime, so 4 days of 8 hours work
should be added to the total :
4 x 8 = 32
Therefore his average is (total hours divided by number of weeks)
:
744 + 32
17 = 45.6 hours per week
And so the average limit of 48 hours has been complied with.
2.2 What flexibilities are relevant?
2.2.1 Individual choice
An individual worker may choose to agree to work more
than the 48-hour average weekly limit. If they do so, the agreement
must be in writing and must allow the worker to bring the agreement
to an end. The agreement may specify a notice period of up to
three months. If no notice period is specified, however, only
seven days' notice would be required. To end the agreement, a
worker must give written notice to his employer.
An employer must also :
2.2.2 Unmeasured working time
The working time limit does not apply to a worker where
:
"...on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself...".
Essentially this applies to workers who have complete control
over the hours they work and whose time is not monitored or determined
by their employer.
Such a situation may occur if a worker can decide when the work
is to be done, or may adjust the time worked as they see fit.
An indicator may be if the worker has discretion over whether
to work or not on a given day without needing to consult their
employer. It is not possible to specify a complete list of the
cases which would fall into the relevant category. The Regulations
cite as examples "managing executives or other persons with
autonomous decision-taking powers, family workers or workers officiating
at religious ceremonies in churches and religious communities".
However, it is important to note that these are for illustration
only. It is the characteristics of a worker's activity which will
determine whether the limit may be excluded.
2.2.3 Special circumstances
The reference period may be extended to 26 weeks in
a range of circumstances. For these situations, the Regulations
list a number of examples. The reference period may be extended
where :
Again it is important to note that these examples are only
illustrations and it is the characteristics of a worker's activity
which determine whether the reference period may be extended.
In seeking to use any of the above flexibilities, it is for the
employer to take a view as to whether the conditions are satisfied
for each individual worker's situation.
2.2.4 Collective and workforce agreements
The reference period for the calculation of average
weekly working time may be extended to up to 52 weeks by a collective
or workforce agreement. A collective agreement in existence before
1 October could have this effect, as could a workforce agreement
which satisfied the required procedures but happened to be made
before that date.
2.3 What special provisions apply to
adolescent workers?
None.
2.4 How will this be enforced?
This measure will be enforced by the Health and Safety
Executive (HSE) or local authority Environmental Health Departments
(consistent with the allocation of responsibilities for enforcement
of health and safety law under the Health and Safety (Enforcing
Authority) Regulations 1998). In brief, the HSE is responsible
for enforcing the working time limits where they apply in factories,
building sites, mines, farms, fairgrounds, quarries, chemical
plants, nuclear installations, schools and hospitals. Local Authority
Officers are responsible for retailing, offices, hotels and catering,
sports, leisure and consumer services. Enforcement will be in
line with the Health and Safety Commission's (HSC) Enforcement
Policy Statement. Copies of the statement may be obtained from
HSE Books (see "Further Information").
2.5 What records do employers need
to keep?
An employer will need to keep adequate records to show
they have complied with the weekly working time limit. It is for
the employer to determine what records need to be kept. The employer
may be able to use existing records maintained for other purposes,
such as pay, or they may need to make new arrangements as appropriate.
In the case of hourly-paid workers, companies may find that keeping
a worker's pay records would adequately demonstrate a worker's
working hours.
An employer is not required to keep a running calculation of workers'
average weekly working time. If an employer's practice does not
include recording hours worked by workers because there is a contract
stipulating standard working hours (for example a regular 9 a.m.
- 5 p.m.), it may be sufficient to meet the requirement by using
management systems to ensure that the specified hours are kept.
The employer would need to ensure that their means of monitoring
workers' working time would be adequate to highlight instances
of workers working in excess of the standard working hours. The
employer may need to monitor the hours worked by such workers
more closely, or adjust the work they are asked to do, to ensure
compliance. Conversely, if a worker never exceeds 48 hours of
working time in a week they will obviously not exceed the average.
The records must be kept for two years.
Where a worker has agreed to work in excess of the 48-hour weekly
working limit, their employer is required to keep records of the
number of hours that the worker has worked (see 2.2.1).
3.1 What are the night work limits?
An employer is required to take all reasonable steps to ensure
that the "normal" hours of their night workers does
not exceed an average of eight hours for each 24 hours over a
17-week period. The averaging period may be extended in certain
circumstances.
3.1.1 What do employers need to do?
First employers need to consider whether they have
any night workers (see 3.1.3). If not then this chapter
and chapter 4 do not apply .
If an employer does have night workers, they will need to
consider
3.1.2 What is night time?
Night time is a period of at least seven hours which
includes the period from midnight to 5 a.m. which can be determined
by a relevant agreement (for example 10 p.m. - 5 am or 12 p.m.
- 7 am). In the absence of such an agreement it will be 11 p.m.
to 6 a.m..
3.1.3 Who is a night worker?
A "night worker" is any worker whose daily
working time includes at least three hours of night time :
A worker may be said to work at night "as a normal course"
if they do so on a regular basis, e.g. on a rotating shift pattern
that resulted in them working regularly during night time, as
opposed to on an infrequent or ad hoc basis. Employers and workers
may wish to clarify this by collective or workforce agreements.
3.1.4 Special hazards
Where a night worker's work involves special hazards
or heavy physical or mental strain, there is a limit of eight
hours on the worker's actual daily working time. The limit must
be observed in any period of 24 hours during which the night worker
performs such work.
The work to which this limit applies is identified :
3.1.5 How is the reference period
determined?
The standard reference period is 17 weeks. This may
be set by a relevant agreement between workers and employers as
consecutive periods of 17 weeks; in the absence of such an agreement,
it will be any period of 17 weeks in the course of a worker's
employment (in effect a rolling reference period).
If a worker has worked for an employer for less than 17 weeks,
the reference period is the period worked to date. Thus, when
a worker has worked for four weeks, their average working time
should be calculated as an average over that period.
Workers and employers may agree under a workforce or collective
agreement to extend the reference period (see 3.2.3).
3.1.6 What are normal hours?
For the purpose of the limit on night work, it is a
night worker's "normal" hours of work which are relevant.
Therefore, the calculation is not affected by absence from work
(e.g. due to sickness), as a worker's normal hours of work would
remain the same regardless of the "actual" hours worked.
Where a worker works overtime, their normal working hours are
the hours of work fixed by their contract of employment. Time
worked as overtime is not normal working time unless a worker's
contract fixes a minimum number of hours, including overtime,
which is more than their notional fixed hours.
Please note that this is a separate limit to the weekly working
hours limit. If night workers do significant amounts of overtime
which is outside their 'normal' hours this may mean that they
exceed the weekly working time limit though comply with the night
work limit during that period.
3.1.7 The calculation of night work
The average hours worked as night work is calculated
by dividing the number of a worker's normal hours of working time
in the reference period by the total number of days in the period,
less the number of rest days to which the worker was entitled
to under these Regulations - see chapter 5.
Average night hours can be calculated using the equation:
A
B - C
Where :
A is the number of hours during the applicable reference
period which are normal working hours for that worker;
B is the number of days during the applicable reference
period; and
C is the number of hours of weekly rest to which a worker
is entitled under the Regulations (i.e. 24 hours for each seven
days) divided by 24. (It should be noted that this is not the
total amount of hours that the worker is at rest in each week.
Only the hours making up the weekly rest period that the worker
is entitled to under the Regulations are counted.)
Example 1:
A night worker normally works 4 12-hour shifts each week. Therefore,
the total number of normal hours of work for a 17-week reference
period would be :
17 weeks of 4 shifts of 12 hours
17 x (4 x 12) = 816
There are 119 days in the reference period and 17 weekly rest
periods of 24 hours to which the worker is entitled. Therefore,
C is : 17 x 24/24 = 17.
The calculation becomes (the total of hours divided by the number
of days a worker could be required to work) :
816
119 - 17
This equals an average of 8 hours in each 24-hour period.
Example 2:
A night worker normally works 5 days of 10 hours followed by 3
days of rest. The cycle starts at the beginning of the reference
period (and so there are 15 cycles of work). The worker takes
2 weeks' leave and works 6 hours overtime a week for 3 weeks.
This does not affect the calculation of normal hours, as these
factors fall outside the worker's set pattern of working time.
Therefore, the total number of normal hours of work for a 17-week
reference period would be :
15 cycles of 5 shifts of 10 hours
15 x (5 x 10) = 750
There are 119 days in the reference period and 17 weekly rest
periods of 24 hours to which the worker is entitled. Therefore,
C is : 17 x 24/24 = 17.
The calculation becomes (the total of hours divided by the number
of days a worker could be required to work) :
750
119 - 17
This is results in an average of 6.7 hours and so is below the
8 hour limit.
3.2 What flexibilities are relevant?
3.2.1 Unmeasured working time
The night work limit does not apply to a worker where
:
"...on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself...".
Essentially this applies to workers who have complete control
over the hours they work and whose time is not monitored or determined
by their employer.
Such a situation may occur if a worker can decide when the work
is to be done, or may adjust the time worked as they see fit.
An indicator may be if the worker has discretion over whether
to work or not on a given day without needing to consult their
employer. It is not possible to specify a complete list of the
cases which would fall into the relevant category. The Regulations
cite as examples "managing executives or other persons with
autonomous decision-taking powers, family workers or workers officiating
at religious ceremonies in churches and religious communities".
However, it is important to note that these are for illustration
only. It is the characteristics of a worker's activity which will
determine whether the limit may be excluded.
3.2.2 Special circumstances
The night work limit does not apply to workers in a
range of circumstances. For these situations, the Regulations
list a number of examples. The reference period may be extended
where :
Again it is important to note that these examples are only
illustrations and it is the characteristics of a worker's activity
which determine whether the limit applies. In seeking to use any
of the above flexibilities, it is for the employer to take a view
as to whether the conditions are satisfied for each individual
worker's situation.
3.2.3 Collective and workforce agreements
The night work limits may be modified or excluded,
or the reference period extended by a collective or workforce
agreement. A collective agreement in existence before 1 October
could have this effect, as could a workforce agreement which satisfied
the required procedures but happened to be made before that date.
3.2.4 Compensatory rest
Where, in the circumstances explained in 3.2.2
and 3.2.3, the limit does not apply or is modified, the
worker must:
An equivalent period of rest should be considered to be a period
of rest as long as that the worker was entitled to but not able
to take. Compensatory rest should be provided within a reasonable
time from when the entitlement to rest was modified.
In practice, cases where it is not possible to take compensatory
rest due to "exceptional circumstances" will be rare,
but will also be self-evident. The flexibility provided for here
is not, of course, something that could be used on a routine basis.
3.3 What special provisions apply
to adolescent workers?
None.
3.4 How will this be enforced?
This measure will be enforced by the Health and Safety
Executive (HSE) or local authority Environmental Health Departments
(consistent with the allocation of responsibilities for enforcement
of health and safety law under the Health and Safety (Enforcing
Authority) Regulations 1998). In brief the HSE is responsible
for enforcing the working time limits where they apply in factories,
building sites, mines, farms, fairgrounds, quarries, chemical
plants, nuclear installations, schools and hospitals. Local Authority
Officers are responsible for retailing, offices, hotels and catering,
sports, leisure and consumer services. Enforcement will be in
line with the Health and Safety Commission's (HSC) Enforcement
Policy Statement.
3.5 What records do employers need to
keep?
An employer will need to keep adequate records to show
that the limits on night work are being complied with. It is for
the employer to determine what records need to be kept. The employer
may be able to use existing records, or may need to make new arrangements
according to individual circumstance (see 2.5).
The records must be kept for two years.
4.1 What are workers entitled to?
An employer must offer a free health assessment to
any worker who is to become a night worker. Employers must also
give night workers the opportunity to have further assessments
at regular intervals.
"Free" means that the assessment must be available without
cost to the worker. Therefore, the employer would be liable to
pay for any relevant charge for the assessment, and the worker
should not have to lose wages or incur other expenses because
of having an assessment carried out. The purpose of the assessment
is to determine whether the worker is fit to undertake the night
work to which they have been assigned.
4.1.1 What do employers need to do?
First employers need to consider whether they have
any night workers (see 3.1.3). If not then this chapter
and chapter 3 do not apply.
They will need to consider:
Any workers who are night workers on 1 October 1998 should promptly be given the opportunity to have a health assessment.
4.1.2 What is a health assessment?
The purpose of the health assessment is to determine
whether a worker is fit to carry out the night work to which they
are assigned. Under health and safety law, an employer should
already have conducted an assessment of the health and safety
risks to which the worker is exposed. This entails the identification
of hazards in the workplace and an assessment of the extent to
which these might harm the worker, followed by appropriate action
to control and reduce exposure.
While workplace hazards are unlikely to change with night work,
risks arising from them might nonetheless be greater at night,
particularly where individuals are suffering from, or susceptible
to, certain medical conditions. It is likely that only a very
few workers will be permanently unfit to work at night. There
are few if any health factors that absolutely rule out night work
in every case. However, a number of medical conditions may in
some cases be made worse by night work, for example:
(NOTE: this list is not exhaustive. It is also important to
note that the effects of conditions such as these on fitness for
night work will often only be temporary)
There is no prescribed procedure for conducting a health assessment.
As a minimum, employers could construct a screening questionnaire
for workers to complete before beginning night work. This would
need to be suitably adapted for regular updating and should be
compiled with guidance from a qualified health care professional
such as a doctor or nurse familiar with the nature of the employer's
business and the issues associated with working at night. As a
guide, the questionnaire should explain its purpose, the nature
of the work to which the individual is being assigned and ask
whether the worker suffers from any medical condition or is undergoing
any medical treatment such as those listed above that might affect
their fitness to work at night.
Screening of responses to such questionnaires should be conducted
by people trained to interpret the information. This will enable
them to identify those individuals with conditions that may be
affected by night work. Where answers to the screening questionnaires
raise any doubts about an individual's fitness to work at night,
the individual should be referred to a suitably-qualified health
care professional for further assessment and for an opinion as
to whether the worker is fit to carry out the work to which they
are to be assigned. It should be remembered that individuals might
be reluctant to disclose personal medical information especially
where they are unsure of its relevance to night work or where
it might prejudice their continued employment.
Health assessments can be provided through a variety of means,
for example an employer's own occupational health service, by
employers arranging for workers to consult their own GPs, or by
employers buying in suitable external provision, such as from
a local occupational health service or GP practice, to carry out
assessments on the employer's behalf.
When requesting health assessments, employers should make clear
to health care professionals that the assessments are to be conducted
within the context of these Regulations. Providing an explanation
of the type of night work (duration, shift pattern etc.) to which
the worker is to be assigned will help the health care professional
to reach an informed decision about the fitness of an individual
to carry out particular night work on a case-by-case basis.
Two types of information arise from the health assessment. A simple
fitness-for-work statement should be provided by the health care
professional to the employer. Clinical information, however, must
remain confidential and can only be released to an employer (or
any other third party) with the worker's written consent. Screening
questionnaires containing non-clinical information can be stored
with an individual's personnel record.
4.1.3 How often is regular?
A night worker is entitled to the opportunity of a
free health assessment at regular intervals. The appropriate frequency
of repeat assessments will vary between individuals, according
to factors such as the type of night work, its duration and the
age and health of the individual worker. Where appropriate, the
employer should be guided by the judgement of a health care professional.
As a rule of thumb, it would be prudent for repeat screening questionnaires
to be completed annually.
4.1.4 Under what circumstances should
a worker be transferred to day work?
A night worker is entitled to be transferred, whenever
possible, to other suitable work which is not at night, where
a registered medical practitioner has advised the employer that
the worker is suffering from health problems connected with the
fact that they work at night. Where a worker's fitness for night
work becomes affected by a disability, employers have a duty under
the Disability Discrimination Act 1995 to make reasonable adjustments,
which might include changes to the worker's hours of work. The
purpose of this is to overcome any disadvantage to the worker
because of their disability and arising from a requirement to
undertake night work.
Employers need to give special consideration to new and expectant
mothers, and young workers. An HSE booklet 'New and Expectant
Mothers at Work: a guide for employers' provides advice on the
former. In assigning young workers to night work that is not of
an exceptional nature, employers should take account of their
training and supervision needs, given their likely inexperience
of working at night.
4.2 What flexibilities are relevant?
None.
4.3 What special provisions apply to adolescent workers?
Adolescent workers are entitled to a health and capacities
assessment if they work during the period 10 p.m. to 6 am. A health
and capacities assessment for an adolescent worker will differ
in that it will need to consider issues like physique, maturity,
and experience, and take into account competence to undertake
the night work that has been assigned.
4.4 How will this be enforced?
This measure will be enforced by the Health and Safety
Executive (HSE) or local authority Environmental Health Departments
(consistent with the allocation of responsibilities for enforcement
of health and safety law under the Health and Safety (Enforcing
Authority) Regulations 1998). In brief the HSE is responsible
for enforcing the working time limits where they apply in factories,
building sites, mines, farms, fairgrounds, quarries, chemical
plants, nuclear installations, schools and hospitals. Local Authority
Officers are responsible for retailing, offices, hotels and catering,
sports, leisure and consumer services. Enforcement will be in
line with the Health and Safety Commission's (HSC) Enforcement
Policy Statement. Copies of the statement may be obtained from
HSE Books (see "Further Information").
4.5 What records do employers need to
keep?
Employers need to keep adequate records that show they
have complied with the requirement to provide for health assessments.
How they choose to do so is left open to individual employers,
though it will need to show who is a night worker, when they had
an assessment and the result of the assessment.
The records must be kept for two years.
5.1 What rest periods are workers entitled to?
5.1.1 Daily rest
A worker is entitled to a rest period of 11 consecutive hours
between each working day.
5.1.2 Weekly rest
A worker is entitled to an uninterrupted rest period
of not less than 24 hours in each 7-day period. This may be averaged
over a two-week period i.e. a worker is entitled to two days'
rest over a fortnight.
Daily rest and weekly rest are separate entitlements which should
be taken consecutively. Weekly rest is also to be additional to
any paid annual leave to which a worker may be entitled to under
these Regulations.
5.1.3 What do employers need to do?
Employers should consider :
5.2 What flexibilities are relevant?
The following flexibilities apply only in respect of
adult workers.
5.2.1 Unmeasured working time
The entitlement to daily and weekly rest does not apply
to a worker where:
"...on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself...".
Essentially this applies to workers who have complete control
over the hours they work and whose time is not monitored or determined
by their employer.
Such a situation may occur if a worker can decide when the work
is to be done, or may adjust the time worked as they see fit.
An indicator may be if the worker has discretion over whether
to work or not on a given day without needing to consult their
employer. It is not possible to specify a complete list of the
cases which would fall into the relevant category. The Regulations
cite as examples "managing executives or other persons with
autonomous decision-taking powers, family workers or workers officiating
at religious ceremonies in churches and religious communities".
However, it is important to note that these are for illustration
only. It is the characteristics of a worker's activity which will
determine whether the rest entitlement arises.
5.2.2 Special circumstances
The entitlement to rest periods does not apply to workers
in a range of circumstances. For these situations, the Regulations
list a number of examples. The entitlement to rest does not arise
where :
Again it is important to note that these examples are only illustrations and it is the characteristics of a worker's activity which determine whether the right arises. In seeking to use any of the above flexibilities, it is for the employer to take a view as to whether the conditions are satisfied for each individual worker's situation.
5.2.3 Collective and workforce agreements
The entitlement to rest may be modified or excluded
by a collective or workforce agreement. A collective agreement
in existence before 1 October could have this effect, as could
a workforce agreement which satisfied the required procedures
but happened to be made before that date.
5.2.4 Shift workers
If a shift worker changes shift, it may not be possible
for them to take their full rest entitlement before starting the
new pattern of work. In such case, the entitlement to daily and
weekly rest does not apply.
The entitlements also do not apply where a worker's work is split
up over the day and so precludes taking 11 hours continuous rest,
for example for cleaning staff who have a morning and evening
shift.
5.2.5 Compensatory rest
Where, in the circumstances explained in 5.2.2,
5.2.3 and 5.2.4, the entitlement does not apply or
is modified, the worker must:
An equivalent period of rest should be considered to be a period
of rest as long as that the worker was entitled to but not able
to take. Compensatory rest should be provided within a reasonable
time from when the entitlement to rest was modified - this should
usually be possible within a couple of weeks for daily rest and
a couple of months for weekly rest.
In practice, cases where it is not possible to take compensatory
rest due to "exceptional circumstances" will be rare,
but will also be self-evident. The flexibility provided for here
not, of course, something that could be used on a routine basis.
5.2.6 Overlap of daily and weekly
rest
The daily rest entitlement may be incorporated into
the weekly rest entitlement if this is justified by "objective
or technical reasons or reasons concerning the organization of
work". Such reasons would have to be inherent in the nature
of the work or its desired purpose, rather than created merely
to avoid the effect of the Regulations.
5.3 What special provisions apply to
adolescent workers?
5.3.1 Daily Rest
Adolescent workers are entitled to an uninterrupted
period of 12 hours rest in each 24-hour period during which they
work.
This does not apply if periods of work are "split up over
the day or are of short duration".
5.3.2 Weekly Rest
Adolescent workers are entitled to two days rest in
each week. This cannot be averaged over a two-week period.
An adolescent's weekly rest period may be reduced to 36 hours,
"where justified by technical or organization reasons".
Such reasons would be inherent in the nature of the work or its
desired purpose, rather than created merely to avoid the effect
of the Regulations.
5.3.3 Flexibilities for adolescent
workers
The flexibilities explained in 5.2 do not apply
to the rest entitlement for adolescent workers.
An adolescent's entitlement to daily rest may be modified or excluded
:
All the relevant conditions have to apply. Clearly they would
only apply in a situation that allowed for no other reasonable
response. Any adolescent carrying out work in these circumstances
must be allowed equivalent compensatory rest time within the following
three weeks.
5.4 How will this be enforced?
The entitlements to rest periods will be enforced by
workers bringing a complaint to an Employment Tribunal. Employment
Tribunals provide an informal, accessible means for individuals
to assert statutory rights and protections relating to their employment.
The Tribunal generally has three members: a legally-qualified
chairman and two lay members, one drawn from a panel of employer
members and one from a panel of employee members.
If denied the entitlement to a rest period a worker may complain
to a Tribunal. However, as a prior step a worker should seek to
settle a dispute with their employer by mutual agreement - perhaps
through the business's own grievance or appeals procedure, where
one exists.
The Advisory, Conciliation and Arbitration Service (ACAS) has
a duty to conciliate in claims under the Regulations. Where a
claim is made, an ACAS conciliation officer will be allocated
to the case. This officer will explain Tribunal procedures, outline
the law relating to the case and generally try to help the parties
reach a settlement without the need for a Tribunal hearing. ACAS
conciliation is voluntary and free.
In line with other cases where Tribunals have jurisdiction, the
complaint must normally be made within three months of the act
or omission complained of, but this period may be extended if
the Tribunal agrees that it was not reasonably practicable to
bring the complaint within three months.
Where a complaint is upheld the Tribunal would make a declaration
to that effect.
The Tribunal may make an award of compensation to be paid by the
employer to the worker. If so, the Tribunal will look at both
the employer's default in refusing to permit the exercise of the
worker's entitlement, and any loss sustained by the worker as
a consequence of that default.
For further advice contact the ACAS Public Enquiry Points. Guidance
on Tribunal procedures is available from booklets produced by
the Employment Tribunals (for details see "Further
information").
5.5 What records do employers need to
keep?
None.
6.1 What rest breaks are workers entitled
to?
A worker is entitled to an uninterrupted break of 20
minutes when daily working time is more than six hours. It should
be a break in working time and should not be taken either at the
start, or at the end, of a working day. It should not overlap
with a worker's daily rest period (see chapter 5).
6.1.1 What do employers need to do?
Employer should consider :
6.1.2 Should rest breaks be paid?
Payment is a matter for workers' contracts with their
employer. The Regulations do not specify that breaks should be
paid or not.
6.1.3 Pattern of work
Where the pattern of work involves uninterruptible
or monotonous activities (for example a single task on a continuous
production line), puts the health and safety of a worker at risk
an employer needs to consider granting regular breaks in order
to reduce these risks.
6.2 What flexibilities are relevant?
The following flexibilities apply only in respect of
adult workers.
6.2.1 Unmeasured working time
The entitlement to a rest break does not apply to a
worker where :
"...on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself...".
Essentially this applies to workers who have complete control
over the hours they work and whose time is not monitored or determined
by their employer.
Such a situation may occur if a worker can decide when the work
is to be done, or may adjust the time worked as they see fit.
An indicator may be if the worker has discretion over whether
to work or not on a given day without needing to consult their
employer. It is not possible to specify a complete list of the
cases which would fall into the relevant category. The Regulations
cite as examples "managing executives or other persons with
autonomous decision-taking powers, family workers or workers officiating
at religious ceremonies in churches and religious communities".
However, it is important to note that these are for illustration
only. It is the characteristics of a worker's activity which will
determine whether the right to a rest break arises.
6.2.2 Special circumstances
The entitlement to a rest break does not apply to workers
in a range of circumstances. For these situations, the Regulations
list a number of examples. The entitlement does not arise where
:
Again it is important to note that these examples are only illustrations and it is the characteristics of a worker's activity which determine whether the entitlement arises. In seeking to use any of the above flexibilities, it is for the employer to take a view as to whether the conditions are satisfied in each individual worker's situation.
6.2.3 Collective and workforce agreements
The entitlement to a rest break may be modified or
excluded by a collective or workforce agreement. A collective
agreement in existence before 1 October could have this effect,
as could a workforce agreement which satisfied the required procedures
but happened to be made before that date.
6.2.4 Compensatory rest
Where, in the circumstances explained in 6.2.2
and 6.2.3, the entitlement does not apply or is modified,
the worker must:
An equivalent period of rest should be considered to be a period
of rest as long as that the worker was entitled to but not able
to take. Compensatory rest should be provided within a reasonable
time from when the entitlement to rest was modified - this should
usually be possible within a couple of weeks.
In practice, cases where it is not possible to take compensatory
rest due to "exceptional circumstances" will be rare,
but will also be self-evident. The flexibility provided for here
is not, of course, something that could be used on a routine basis.
6.3 What special provisions apply to adolescent workers?
6.3.1 Rest breaks
An adolescent worker is entitled to a rest break of
30 minutes when daily working time is more than four and a half
hours.
Where a young person is employed by more than one employer, working
time is to be aggregated for the purposes of establishing whether
they are entitled to a rest break. It would be reasonable for
an employer to make enquiries of any adolescent worker to ascertain
whether an entitlement to a rest break is being observed, taking
account of the adolescent's total working time (see 2.1.3).
6.3.2 Flexibilities for adolescent workers
The flexibilities explained in 6.2 do not apply
to the rest entitlement for adolescent workers.
An adolescent's entitlement to a rest break may be modified or
excluded:
All the relevant conditions have to apply. Clearly, they would
only apply in a situation that allowed for no other reasonable
response. Any adolescent carrying out work in these circumstances
must be allowed equivalent compensatory rest time within the following
three weeks.
6.4 How will this be enforced?
The entitlement to a rest break will be enforced by
workers bringing a complaint to an Employment Tribunal. Employment
Tribunals provide an informal, accessible means for individuals
to assert statutory rights and protections relating to their employment.
The Tribunal generally has three members: a legally-qualified
chairman and two lay members, one drawn from a panel of employer
members and one from a panel of employee members.
If denied the entitlement to a rest break a worker may complain
to a Tribunal. However, as a prior step a worker should seek to
settle a dispute with their employer by mutual agreement - perhaps
through the business's own grievance or appeals procedure, where
one exists.
The Advisory, Conciliation and Arbitration Service (ACAS) has
a duty to conciliate in claims under the Regulations. Where a
claim is made, an ACAS conciliation officer will be allocated
to the case. This officer will explain Tribunal procedures, outline
the law relating to the case and generally try to help the parties
reach a settlement without the need for a Tribunal hearing. ACAS
conciliation is voluntary and free.
In line with other cases where Tribunals have jurisdiction, the
complaint must normally be made within three months of the act
or omission complained of, but this period may be extended if
the Tribunal agrees that it was not reasonably practicable to
bring the complaint within three months. Where a complaint is
upheld the Tribunal would make a declaration to that effect.
The Tribunal may make an award of compensation to be paid by the
employer to the worker. If so, the Tribunal will look at both
the employer's default in refusing to permit the exercise of the
worker's entitlement, and any loss sustained by the worker as
a consequence of that default.
6.5 What records do employers need to
keep?
None.
7.1 What leave are workers entitled
to?
A worker is entitled to at least three weeks' paid
leave each year, rising to four weeks after 23 November 1999.
This is not additional to contractual entitlements. Taking contractual
paid leave in a particular leave year therefore counts against
the worker's entitlement under the Regulations.
Where 23 November 1999 falls within a worker's leave year, their
entitlement to leave is determined according to how much of the
leave year falls either side of 23 November. That is, it will
be three weeks plus a fraction. The fraction is the amount of
time that is proportionate to the period of the leave year that
falls after 23 November 1999. This is rounded to the nearest day.
Example :
If a worker's leave year starts on 1 January and they work 5 days
a week, then their leave entitlement for 1999 is: 3 weeks (15
days) + a portion of a further week.
The additional part week is calculated by multiplying the number
of working days in the worker's normal working week by the number
of days between 23 November and the start of the leave year divided
by the number of days in a year.
In this case there are 39 days between 23 November and the start
of the leave year, so the calculation is :
5 days x 39/365 = 0.53.
This is rounded up to the nearest day i.e. 1 day. This means that
the worker is entitled to 16 days paid annual leave for the leave
year 1999.
7.1.1 What do employers need to do?
Employers should consider :
7.1.2 Who is entitled to leave?
A worker must have been continuously employed by the
employer for 13 calendar weeks before the entitlement to annual
leave arises. For the purposes of the qualifying period, any week
in which a worker has a contractual relationship with the employer
whether throughout the week or during a part of it, will count
towards the qualifying period. After the qualifying period, a
worker would have a right to the full entitlement, subject to
the provisions relating to termination of employment.
7.1.3 Leave years
The entitlement to paid leave arises in respect of
a "leave year". The leave year will normally start on
a date set by agreement between employers and workers. In the
absence of an agreement, the leave year will start :
Where a worker starts work part way through the leave year
that is to apply to them, their entitlement to leave is proportionate
to the amount of the leave year that the worker works. Correspondingly,
if a worker's employment is terminated during a leave year the
entitlement is again proportionate to the part of the leave year
that remains (see 7.1.8).
The entitlement to leave only arises for the leave year to which
it relates. However, employers and workers will, of course, remain
free to agree to enhance contractual paid leave to take account
of any leave entitlement not taken for a particular year. There
is no right to leave under these Regulations that is untaken at
the end of a leave year.
The leave entitlement provided by these Regulations may not be
replaced by an "allowance in lieu" (i.e. pay or extra
pay replacing actual leave to which the worker is entitled), except
where the employment relationship is terminated. This does not
affect contractual leave, over and above the minimum entitlement,
which may be carried over or attract payment in lieu.
7.1.4 What is a week's leave?
A week's leave should be equivalent to the time a worker
would work in a week. In general this should be straightforward.
However, where a worker works irregular hours, the worker would
have a right to annual leave that would allow them to be away
from their place of work for a week.
Example :
For a worker working 5 days a week, the entitlement corresponds
to 15 day's annual leave.
A part-time worker, working two days a week, would have a right
to 6 days' paid annual leave.
If a part-time worker's working time is set in terms of hours,
then their annual leave might be expressed in terms of hours too.
In the case of a worker working 24 hours a week the leave entitlement
would be 72 hours.
7.1.5 Public holidays
There is no statutory entitlement to bank and public
holidays. These are simply days where a worker may receive leave
under the terms of their contract. As with other contractual leave,
this can be used to discharge an employer's responsibility for
providing the statutory leave under these Regulations. [Where
a worker is paid for a public holiday this will count towards
their entitlement to annual leave.]
7.1.6 Notice
The Regulations provide for a procedure for employers
and workers informing each other when leave is and is not to be
taken. Employers and workers can make agreements as to what notice
is required instead of the following procedure set out in the
Regulations.
In the absence of an agreement, the following applies :
Example :
If a worker wished to take a day's leave then the worker would
have to give their employer at least 2 days' notice. If a worker
had given the employer 2 days' notice of them wishing to take
1 day's leave then the employer can come back within 1 day to
refuse that leave. This provides employers flexibility where,
for example, a number of other workers had also applied for leave
on the same day.
7.1.7 How is a week's pay calculated?
A worker is to be paid for their leave according to
sections 221-224 of the Employment Rights Act 1996, which determine
the amount of a week's pay for the purposes of that Act.
A normal week's pay is therefore :
A worker's normal working hours are said to be the normal hours fixed by their contract of employment. Overtime hours are not normal working hours unless a worker's contract fixes a minimum number of hours (in which overtime is included) which is more than their notional fixed hours.
7.1.8 Payment in lieu on termination
Where a worker loses part of their entitlement to annual
leave because their employment terminates during a leave year,
the worker has a right to payment in lieu. The sum due in each
case can be provided for in a relevant agreement. In the absence
of such provision, the sum can be worked out by using this formula:
(A x B) - C
where:
A is the period of leave which the worker is entitled
to,
B is the proportion of the worker's leave year which expired
before their employment ended, and
C is the period of leave taken by the worker between the
start of the leave year and the effective date of termination.
Example :
In the case of a worker who works five days a week (i.e. 3x5 days'
leave during the leave year) whose employment terminated six months
into the leave year (i.e. half the leave year has expired) and
had taken only three days leave. The calculation would be:
(15 x 0.5) - 3 = 4.5
Therefore the employer should pay the worker the equivalent of
412 days' pay.
The Regulations also provide for an employer to be compensated
where a worker receives more paid leave than was properly due
to them i.e. leave proportionate to the amount of leave year worked
on termination.
7.2 What flexibilities are relevant?
None.
7.3 What special provisions apply to
adolescent workers?
None.
7.4 How will this be enforced?
The entitlement to paid annual leave will be enforced
by workers bringing a complaint to an Employment Tribunal. Employment
Tribunals provide an informal, accessible means for individuals
to assert statutory rights and protections relating to their employment.
The Tribunal generally has three members: a legally-qualified
chairman and two lay members, one drawn from a panel of employer
members and one from a panel of employee members.
If denied the entitlement to annual leave a worker may complain
to a Tribunal. However, as a prior step a worker should seek to
settle a dispute with their employer by mutual agreement - perhaps
through the business's own grievance or appeals procedure, where
one exists.
The Advisory, Conciliation and Arbitration Service (ACAS) has
a duty to conciliate in claims under the Regulations. Where a
claim is made, an ACAS conciliation officer will be allocated
to the case. This officer will explain Tribunal procedures, outline
the law relating to the case and generally try to help the parties
reach a settlement without the need for a Tribunal hearing. ACAS
conciliation is voluntary and free.
In line with other cases where Tribunals have jurisdiction, the
complaint must normally be made within three months of the act
or omission complained of, but this period may be extended if
the Tribunal agrees that it was not reasonably practicable to
bring the complaint within three months.
Where a complaint is upheld the Tribunal would make a declaration
to that effect.
The Tribunal may make an award of compensation to be paid by the
employer to the worker. If so, the Tribunal will look at both
the employer's default in refusing to permit the exercise of the
worker's entitlement, and any loss sustained by the worker as
a consequence of that default.
7.5 What records do employers need
to keep?
None.