Get a life! Your working time rights

Contents of this page:

• Know your working time rights
• The Working Week
• Working out your working time
• How do you work out the average?
• Individual opt-outs
• Varying the 48 hour limit by collective agreement
• What to do if you regularly work more than 48 hours
• Night owls
• Special Hazards
• Young workers
• Health checks
• Frequently Asked Questions
• Get a better deal at work - join a union
• More information about your working time rights

Thanks to Europe, most people at work now have basic rights to proper time off, breaks and holidays.

This page explains how you may benefit from:

• a ceiling of 48 hours on the maximum average working week

• free health assessment for night workers

• a ceiling of an average of eight hours night work in every 24

A second TUC page, Take a Break!, explains the other new rights:

• 4 weeks' paid holiday a year 

• a break when the working day is more than six hours

• a rest period of 11 hours every working day

• rest period of 24 hours once every seven days

Know your working time rights

Working time rights are complicated. Some do not apply to everyone at work. Individuals can opt out of some of them. Employers and employees acting together can agree to vary some of them.

Bad employers are taking advantage of the complexity to deny staff their legal rights. Others simply do not understand what they should be doing.

This page answers basic questions about your working time rights to a 48 hour week and night work. Some are clear and straightforward. However it is harder to give definite advice about others, as how they work in practice will not be clear until some cases have gone to court. We also try and answer the commonest questions.

But everyone’s circumstances are different and you should not rely on this page as a statement of the law. Always take further advice about your own case before taking any action. This page provides contact details.

The Working Week

The basic right is easily stated - there should be a limit of 48 hours on the maximum average working week.

• The 48 hour limit is an average – not a limit each week

• The average is calculated in different ways for different types of job

• Individuals and groups of workers can vary the limit or opt out from it in various ways

Are you covered?

The following groups are not covered (though some will be in the future):

• Transport workers

Transport jobs include both drivers, conductors and train staff who move around and workers at a fixed location such as ticket collectors. It does not include all the other staff who may work at a transport location such as people who unload lorries or staff at shops in stations. These are covered.

• seafarers and offshore workers

• junior doctors in training

• armed forces and civil protection services, such as the police

• not all civil protection personnel are excluded. Ambulance personnel, firefighters and prison staff are covered. You will need to take more advice if you work in this category

• domestic staff in a private household

• those whose working time is not “measured or pre-determined” such as some managers, people working for other members of their family and ministers of religion. Unpaid 'voluntary' overtime does not count as working time. Many workers - particularly white collar and managerial employees - face enormous pressure to do so-called voluntary overtime. In practice, the long hours culture means that they have no choice because the pressure of work is so great that they are forced to conform to the norm of working extra long hours.

  

Working out your working time

What counts as working time?

You need to be at your workplace and carrying out your working duties under the direction of your employer for it to count as working time.

It includes:

• training at the workplace provided by your employer

• time travelling to visit clients when this is a regular part of your job such as a travelling salesman or home help

• a working lunch

This means that it does not include:

• travel to work time

• time when you are on call but not working. (This rule may change when a European Court of Justice case brought by some Spanish doctors is concluded - expected summer 2001). If you are expected to be on call at your employer's premises, watch this space.)

• training at a college

• time taken to travel to an occasional meeting away from your normal workplace

A number of grey areas remain. Some will need to be tested in the courts, before the law is clear.

How do you work out the average?

Don’t forget that the limit is only on your average hours of work. If you work more than 48 hours one week, but fewer hours the next then you may well have worked less than the 48 hour limit on average. The regulations set out how the average is calculated.

For most people you calculate your average by looking at your working time over the last 17 weeks.

To calculate this add up your working time for each of the last 17 weeks and then divide by 17. You should not include days when you were off sick or on leave.

Instead you should add in extra days you did work until you get 17 weeks worth of work.

In some jobs the time over which the average is worked out is extended to 26 weeks.

These include:

• security guards, caretakers and other jobs requiring a permanent presence to protect people or property

• where the job involves long travelling distances

• where the job requires “continuity of service or production” such as hospitals, prisons, docks, airports, media, post and telecoms, civil protection, agriculture, and industries where work cannot be interrupted such as utilities

• jobs where there are seasonal rushes such as tourism, postal services and agriculture

• it can apply to anyone covered by the 17-week limit if their job is suddenly affected by an accident, risk of an accident or other unexpected event

  

Individual opt-outs

You can agree to opt-out of the 48 hour limit as long as you do it in writing. You can opt-out either for a defined period of time or indefinitely.

But you must be able to reverse your opt-out so that you can be covered by the 48 hour limit once again. You will have to wait no longer than three months before you regain protection. The period of time will depend on the agreement you originally signed.

The commonest abuse of the working time regulations is employers putting undue pressure on their employees to opt out of the 48 hour limit. They cannot force you to opt out if you do not want to. They are committing an offence if they dismiss you or otherwise cause you what the law calls “detriment”. If they try, take advice as you can take them to an Employment Tribunal.

Varying the 48 hour limit by collective agreement

There are many ways the 48 hour limit can be varied by agreement between management and the workforce collectively. But it is important to realise that these agreements cannot be made by individuals and their employer. It must be between the employer and all those doing the same or a similar job.

What can be varied is too complex to set out in a page. Get a copy of the TUC guide if you want to know more (see below).

There are two ways these collective agreements can be made.

1) Where there are recognised trade unions then the agreement can be made as part of normal negotiations. For example unions and employers at some workplaces have agreed to count hours on average over a year so that a long working week at peak demand is balanced by short days and more holidays when work is slack. This can bring benefits to both workers and employers.

2) If there are no unions the 48 hour week rules can be varied by what is called a “workforce agreement”. The employer organises an election for workforce representatives who then conclude an agreement. The TUC is worried about this process. It is entirely under the control of the employer. Reps without union back-up are much less likely to get a good deal. If this is going on in your workplace, you may like to discuss with an appropriate union how best to use it as a way of unionising your fellow workers. Your reps should also take further advice from their unions.

What to do if you regularly work more than 48 hours

If you have not opted out and you are in danger of working more than 48 hours over the 17 or 26 week period, then a recent court ruling has confirmed that your employer must give you time off to bring your average down below the 48 hour average.

If your employer is taking no notice of the working time regulations, then you should keep your own record of your working time and complain to your union or the Health and Safety Executive.

Night owls

If you regularly work at night you should do no more than an average of eight hours in every 24. Your employer should provide a free medical check, and where possible, allow you to switch to other shifts on medical advice. Some groups are however exempt. And if you think you understand how your working hours are counted to test whether you are over the 48 hour limit, the bad news is that the night work calculations are different - overtime and time off are treated differently. Young people and those doing specially hazardous work get better protection.

Are you a night worker?

If you only occasionally work nights, you do not get this protection, only night workers do.

To be classed as a night worker you have to work more than three hours at night as part of the normal course of your job.

“At night” means between 11pm and 6am. So if you have an evening shift that finishes at 2am you are a night worker, but if you finish at 1am you are not as you are only working two hours “at night”.

However this definition of “night time” can be varied by agreement between the employer and the workforce using the same procedures that allow the 48 hour limit to be varied. Agreement can also be reached to include more people as night workers - say everyone who works more than two hours.

But whatever different definition of night time is reached, it must always be seven hours or more and it must always include the time between midnight and 5am.

A court has ruled that a worker who worked one week in three on a night shift is a night worker. The employer lost the argument that she was not a night worker because less than half her working hours were at night. The court said it was the regular nature of her shift pattern that made her a night worker.

Working out the average

The night work limit is worked out differently from the 48 hour limit.

The key difference is that the average is worked out over the days you can legally work in a week. As you are entitled to a 24 hour rest period each week this leave six days when you can legally work.

In other words you could work 9 hours for 5 nights each week. At first sight this might look as if it breaks the limit of “a ceiling of an average of eight hours night work in every 24”.

But you have to include the sixth night when you could work but are not doing so in the calculation.

On average you are working 45 hours divided by six. This is seven and a half hours, so you are not over the limit.

In practice the calculation is more complicated than in this example.

If you take time off for holidays or sick leave during the 17 week period this is treated differently than when considering the 48 hour limit. Instead of adding extra days to get the period up to 17 weeks, you assume normal hours are worked on those days off.

Overtime is also treated differently. It is always included in calculations for the 48 hour limit. It is only included in calculations for the eight hour average if it is part of your normal hours of work. If you only work occasional overtime it does not count. If however you work overtime every week as part of your normal working pattern it does count.

If you work split shifts - say one week on nights followed by one week on days - your average night hours will be nowhere near eight hours. However you are still entitled to a medical check up (see below).

But despite these differences and the exemptions for some jobs, the 48 hour week rules still apply.

Special hazards

If your work involves special hazards or heavy physical or mental strain, and you are a night worker, then you cannot work more than eight hours in any 24. This is not an average, but an absolute limit. In other words as soon as you have worked eight hours you must stop. It therefore does apply to split shift workers when they work nights.

But deciding whether your work is covered by this definition may be more tricky. Employers and employees together can agree which jobs are covered through a collective agreement - either through union negotiations or a workforce agreement (see the section on varying the 48 hour week above).

Your employer is also obliged by law to carry out what is called a risk assessment. As part of this he or she should decide whether any night workers fall under this category.

Exclusions from the eight hour limit

Both the eight hour average and the eight hour absolute limit can be set aside in the same way that variations can be made to the 48 hour limit by collective agreement (see the section on varying the 48 hour week above).

The eight hour limit does not apply to these jobs:

• security guards, caretakers and other jobs requiring a permanent presence to protect people and property

• where the job involves long travelling distances

• where the job requires “continuity of service or production” such as hospitals, prisons, docks, airports, media, post and telecoms, civil protection, agriculture, industries where work cannot be interrupted such as utilities

• jobs where there are seasonal rushes such as tourism, post and agriculture.

• any night worker can lose this protection if their job is suddenly affected by an accident, risk of an accident or other unexpected event

However, if you fall into one of these categories you are entitled to “compensatory rest” to make up for any breaks or rest periods you have missed by working beyond the eight hour limit.

But there is no individual opt-out. You cannot sign away your rights. Even if you want to work more than 8 hours on average you cannot, unless you are covered by a collective agreement or fall into one of the groups above.

Young workers

The Government is soon expected to publish new rules on night work for 16-17 year old workers. Until then, the rules are the same as for their older colleagues.

The DTI has been consulting on the new rules. The TUC has told the Government that it wants tough rules to protect young people.

Health checks

Before you begin night work you should be offered a free health assessment. This should be repeated regularly - the government recommends annually.

If night work is bad for your health you should, if it is possible for the employer to do so, be offered a chance to transfer to day work.

A health assessment can take the form of a questionnaire, rather than an examination by a doctor or nurse, as long as the questionnaire has been developed by someone medically qualified and is evaluated by someone with training (but not necessarily a doctor or nurse).

Frequently Asked Questions

My employer says he will sack me unless I opt out. What are my rights?

Your employer cannot do this. If you refuse to sign an opt out and you get the sack, you can take a case to an Employment Tribunal. Action against you that falls short of dismissal such as denying you promotion is also outlawed. You will almost certainly get compensation, but you should be aware if you get the sack that tribunals only rarely use their power to get people reinstated to their jobs.

I am going for a job interview and I expect to be told that signing an opt out is a condition of getting the job.

This is clearly against the spirit of the Working Time Regulations, but the regulations do not specifically outlaw it, so employers can probably get away with this.

However once you have started work with an employer and signed an opt-out you can withdraw your op-out at any time. The longest you can wait for that to come into effect is three months. If your employer sacks you at this stage he is breaking the law, and you can take a case to an Employment Tribunal.

My boss says she will cut my pay unless I sign an opt-out. Can she do this?

You cannot have your basic pay cut to punish you for refusing to opt out. However if you are paid by the hour, or receive overtime for hours over your basic working week then you will obviously get more pay if you work more than 48 hours than if you work fewer. There is nothing to stop an employer from paying a higher rate of overtime for hours over 48 hours a week, but if you find your overtime pay has been cut for hours under the 48 hour limit, this may be an illegal variation to your contract of employment. You should take further advice.

I work as a care attendant and travel between my client’s homes. Does this travel time count towards the 48 hour limit?

Almost certainly, as it is a regular part of your job.

I’m not getting my working time rights, what should I do?

If you feel able you should ask your employer why not. They may simply not know about the law. You should suggest they get the government’s guide for employers. If you have an unreasonable employer who you cannot approach or refuses to do anything about clear breaches of the rules then you should complain to the Health and Safety Executive. If you work somewhere where the council has other inspection duties such as a restaurant you can complain to your local council’s Environmental Health Department.

If you are dismissed or suffer in some way because you refuse to opt out then you may want to take a case to an Employment Tribunal. These are informal courts that deal with work related disputes. You need to get a form called an “ET1" from a Citizens’ Advice Bureau, your union or a local job centre. But you are strongly advised to take advice before doing this.

Get a better deal at work - join a union

At times we all need advice or support in connection with employment.

Everyone has the right to join a union - it costs less than you think and your employer doesn’t need to know you are thinking of joining up. The average cost of being in a union is only 92p a week for part-timers and £1.99 for those working full-time.

To find out more about how to join a union and which union is the right one for you, complete our form, or phone the TUC on 020 7636 4030 or write to: Join a Union Campaign, TUC, Congress House, Great Russell Street, London, WC1B 3LS. The TUC has published a fuller guide to the Working Time Regulations. It can be ordered by phoning TUC publications on 020 7467 1294 and costs £5.

More information about your working time rights

The Department of Trade and Industry's Workright number is 0845 6000 925. Use this to get copies of free government literature on the Working Time Directive.

The DTI guidance on the Working Time Directive is on their website. Click here.

The Health and Safety Executive infoline on 0541 545500 or the Environmental Health department of your local council can help with queries on the 48 hour week and night work.

ACAS is a public body that promotes good workplace relations. Their public enquiry points can provide general advice on rights at work for employees and employers.

Birmingham 0121 456 5856

Bristol 0117 946 9500

Cardiff 01222 761126

Fleet 01252 811868

Glasgow 0141 204 2677

Leeds 0113 243 1371

Liverpool 0151 427 8881

London 0171 396 5100

Manchester 0161 228 3222

Newcastle 0191 261 2191

Nottingham 0115 969 3355

Your local Citizens’ Advice Bureau or Law Centre will provide employee rights advice. Your local Library may know of other local agencies able to advise or assist.

If you need information about making a claim or Tribunal procedures you should call the Employment Tribunal Service Enquiry line 0345 959775

If you think your problem may have a discrimination aspect then you might find the following helpful:

The Equal Opportunities Commission 0161 833 9244

Commission for Racial Equality 020 7828 7022

Lesbian and Gay Employment Rights 020 7704 2205