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Basic facts about working time
One of the most essential ingredients in the organisation of work is time: when we work; for how long; and how we balance working time with time outside work.
Full-time employees in the UK work the longest hours in Europe. Here's why:
- The law that protects against very long hours is weaker in the UK.
- Most people do not know about the laws we do have, and they are not enforced.
- More people do the kind of white-collar jobs where overtime is not paid.
- Many workers work long hours because they are concerned that if they do not they might lose their jobs or not be considered for promotion.
- We have just got into the habit where employers expect, and staff are prepared to work, very long hours. It is the dreaded 'long hours culture'.
Long hours are not good for us; they cause stress; they are bad for our health; they wreck relationships; they make caring for children or dependants more difficult; and tired, burnt-out staff are bad for business. Evidence suggests that it is increasingly difficult for people to get their jobs done in their contractual hours and that there is a mismatch between the hours that people would like to work and the jobs available.
It does not mean that we should turn into a nation of clock-watchers. Most people enjoy their jobs and find them fulfilling. But there is a need for give and take at work. Putting in some extra hours when there is an emergency or a sudden increase in orders is one thing. The problem is when it turns to 'all take'. Long hours become the norm, not the exception, and even longer hours are needed when a real crisis comes along.
Regularly working more than 48 hours per week can lead to serious health and safety problems. Long hours can also lead to low productivity, squeeze out education and training, play a big part in excluding women from certain jobs, and put pressure on family life and parenting. Long hours workers have no chance of achieving a decent work/life balance.
Many people in the UK do not work excessive hours. However, in October to December 2011, some 4.8 million people regularly worked more than 45 hours a week in the UK. That is nearly one in five employees working over 45 hours per week, almost one in ten women and 28 per cent of male workers, according to the Office for National Statistics.
In its report Working time Developments – 2010, the European Foundation for the Improvement of Living and Working Conditions found that 2010 marked a reversal of the downward trend from 2006-2009 in actual weekly working hours, and that the gap between normal collectively agreed and actual working hours also widened upwards. According to this analysis, the UK dropped from first to third highest average actual weekly working hours in full- time employment at 40.5 hours per week, with Romania topping the table at 41.3 hours per week, followed by Luxembourg at 40.8. Finland's workers had the shortest hours at 37.8 per week. The UK average actual working hours are still longer than the average for the EU15 member states which is 39.4 hours per week, higher than the average for the enlarged EU of 27 member states which is 39.7, and higher than the average for the 12 new member states which is 39.9 hours per week. Actual weekly hours worked by full-time employees were longer than the average normal collectively agreed working week in almost all EU states, with the widest gap in the UK at three hours more per week actually worked.
Since the publication of that TUC report, academic and scientific studies continue to confirm the damaging effect on both physical and mental health and family life of working long hours.
Working excessive hours increases the risk of injury thorough fatigue and loss of concentration, and can lead to severe headaches, stomach, bowel and other digestive system problems, stress, depression, and even premature death from heart disease. Excessive hours are also likely to lead to increased smoking, drinking and eating a poor diet, all of which have serious health consequences. They also reduce the time available for family, socialising and relaxing, and so can drastically undermine the quality of life. See, for example, European Agency for Safety and Health at Work E-FACTS 57, Family Issues and Work-Life Balance.
A study of over 7,000 middle aged civil servants by researchers at University College London, published in the Annals of Internal Medicine in April 2011, confirmed that adults working for more than 11 hours a day had a more than 67 per cent higher risk of developing coronary heart disease than those who worked an eight-hour day. The same study found that working 11 or more hours a week was associated with a 2.5 times increase in the odds of experiencing a major depressive episode compared with colleagues working the civil service's standard seven to eight hours a day. Professor Stephen Holgate of the Medical Research Council (MRC), which part-funded the investigation, said, "This study might make us think twice about the old adage 'hard work won't kill you'. Tackling lifestyles that are detrimental to health is a key area for the MRC and this research reminds us that it's not just diet and exercise that we need to think about."
The European Union working time directive sets 48 hours as the maximum working week. In introducing the Working Time Regulations, the British government demanded the EU permit an 'opt-out' for UK workers, and the EU allowed this to happen. This allows employers to ask their workers to sign a document saying that they are willing to work more than a 48- hour week; but there are real concerns that employers can pressure workers to 'voluntarily agree' with them that they can work in excess of the 48-hour maximum.
In November 2006, Ministers from European Union (EU) countries were unable to agree an end to the UK opt-out from Europe's 48-hour working week ceiling. Commenting on this, former TUC General Secretary Brendan Barber said:
"This was a missed opportunity to ensure that UK workers are properly protected against the dangers of overwork. The trend in the UK is now towards a slow decline in long hours working. New legal rights would have speeded up that process without hitting economic success. Because the UK Government would not support a compromise today to phase out the UK's opt-out it is now likely to face legal action on the way that on-call time is treated in UK law." He continued:
"But the Government is not off the hook. It is clear there is widespread ignorance of working time rights, extensive employer abuse of the opt-out and precious little enforcement of working time rules. The TUC will step up its campaign to bring the UK into line with existing EU law. But the legal approach is not the only way to counter our long hours culture. We will continue to work with Government and employers to shift the culture of UK workplaces and attack the poor productivity and work organisation that long hours working covers up."
The TUC has analysed unpublished findings from the Government's Labour Force Survey. The analysis showed that removing the opt-out would have had little economic effect:
- Only 800,000 to one million UK employees would have had to make a serious change to their working patterns if the opt-out was ended, but many of these work excessively long hours with at least 130,000 regularly putting in more than 60 hours a week.
- The number of UK employees working more than 48 hours has declined by 17.5 per cent since the 1998 peak of four million, 700,000 fewer employees are now working long hours.
- The incidence of long hours workers has declined in every industry, occupation and region, although the pattern of improvement is very uneven, with some sectors doing much better than others.
- Because of the growth of some jobs and industries there are more long hours workers in some of them, but even here the proportion doing long hours has fallen.
- Starting from a higher baseline, the decline of long hours working has been much sharper in the private sector.
- One third of UK employees who work more than 48 hours per week are only working one or two extra hours per week.
On 1 April 2009, MEPs and employment ministers met at a conciliation meeting to consider the ending of the UK Government's opt-out of the working time directive. Commenting on the lack of agreement to end the UK's opt-out, former TUC General Secretary Brendan Barber said:
"We are disappointed the UK is part of a minority of EU governments that continue to block progress towards ending our damaging long-hours culture.
"The health hazards and lack of productivity caused by excessive working time are well proven. And with people being made redundant or reducing their hours, the business lobby's insistence that they still need long hours looks even more out of date.
"The TUC urges the Government to change its position and put an end to dangerous long hours working."
TUC Work Your Proper Hours Campaign
The TUC's Work Your Proper Hours Day is the date in February calculated to be when the average person who does unpaid overtime finishes the unpaid days they do every year, and starts earning for themselves. Work Your Proper Hours Day was 24 February in 2012. The campaign calls on employers to recognise the work of staff doing unpaid overtime.
The TUC's Long Hours Clinic Tool was devised by Professor Cary Cooper of Lancaster University for Work Your Proper Hours Day 2009. Take the test and benefit from Professor Cooper's advice.
Unpaid overtime is on the decline, but progress is so slow that it will take until 2030 to end regular unpaid overtime of more than 10 hours every week, according to a TUC analysis of official statistics.
In December 2012, the TUC estimated that a record 5.26 million people worked unpaid overtime last year, worth £28.9bn to the UK economy. While average hours are falling across the economy – both as a result of the recession and changes in working practices – UK workers are still doing the third longest shifts in Europe, with only Austrians and Greeks working longer. One in five workers regularly works unpaid overtime, while the long hours culture is prevalent amongst managers in their 30s and 40s. There was an increase of a quarter of a million people in the 50s to 60s age group who worked unpaid overtime, compared to 2001.
UK workers remain among the most overworked in Europe, new official statistics indicate. An analysis published by the Office of National Statistics (ONS) found the average working time in the UK for April to June 2011 was shorter than the European Union average (36.3 hours a week compared with 37.4), but this is because the UK has a higher percentage of part- timers, 27 per cent compared with 20 per cent in the EU as a whole. When ONS examined the position for full-time workers, people in the UK work longer than the EU average (42.7 hours compared with 41.6), with only people in Austria and Greece working a longer week, both at 43.7 hours a week. The shortest full- time hours were in Denmark at 39.1 hours per week. Commenting on the figures, former TUC general secretary Brendan Barber said: "These figures shine a light on the valuable but too often unrewarded extra hours that UK workers put in every week. Employers should do more to recognise the unpaid overtime that their staff do, which contributes £29bn to the UK economy every year … Smarter working practices and an end to pointless presenteeism would help make staff more productive and achieve a better work/life balance."
Shift work and night work
As long ago as 1977, the ILO report Night Work identified a range of adverse health effects of night work and recommended that workers should not work nights for economic reasons, such as paying off employer costs of capital equipment more quickly. Shift work, night work and extended working hours are all hazards that present a serious risk to workers health. As with other hazards these should be eliminated or reduced wherever possible. The most serious health effects related to shift and night work are cancer, heart disease and metabolic diseases such as diabetes. See the chapter, Shift Workers and Night Workers, for more information.
The International Agency for Research on Cancer (IARC) reported in late 2007 that "shiftwork involving circadian disruption is probably carcinogenic to humans" and classified shift work as a category 2A carcinogen for both men and women. Dr Vincent Cogliano of IARC said this was based on a wide range of studies involving both humans and animals and that there was evidence to support the hypothesis that changes in sleep patterns suppressed the production of melatonin in the body. "Melatonin has beneficial effects in preventing some of the steps leading to cancer," he said. "The level of evidence is really no different than it might be for industrial chemicals."
Melatonin is replenished in the body during the hours of darkness, but night workers are exposed to artificial light during this time, and it is this that inhibits melatonin replenishment. Studies conducted in Denmark in the 1990s began to link this lack of melatonin with the risk of breast cancer for women working prolonged night shifts. Trade unions estimate that about 20 per cent of the UK workforce works at night and Labour Force Surveys show that an estimated 1.8 million women usually or sometimes work shifts. Of these an estimated 400,000 are involved in either permanent night working, or working nights regularly as part of continental or rotating shift patterns.
While the Danish government has paid workers' compensation for breast cancer to a number of women workers, including nurses and flight attendants, who had no known risk factors other than working night shifts at least once a week for the past 20 years, the UK has been much slower to act. According to an HSE research report in 2003: "Overall, the evidence for an association of breast cancer risk with shift work is appreciable but not definitive. Further epidemiological research is needed to clarify the relationship." The Industrial Injuries Advisory Council (IIAC) in 2009 carried out its own review of the evidence (pdf) for shift work being a risk factor for breast cancer and concluded that there was insufficient evidence that shift work doubled the risk of breast cancer. So, unlike Danish women, British women developing breast cancer as a result of prolonged night shift work will be unable to claim Industrial Injuries Disablement Benefit.
However, in March 2010, Dr Lesley Rushton reported in her HSE-commissioned study "The Burden of Occupational Cancer" (pdf) that an estimated 2000 breast cancer cases, and around 550 breast cancer deaths a year could be attributable to shift work, if such work does indeed cause this cancer. The HSE response was to commission the University of Oxford to undertake an extensive study on the relationship between shift work and chronic disease, with a focus on shift working patterns in relation to cancer and other chronic conditions in men and women. The study will be completed by December 2015, by which time another 1,500 women will have died of breast cancer, and some of these deaths may have been related to night work.
Shift work is also associated with heart disease but a review of evidence carried out by the Industrial Injuries Advisory Council (IIAC) published in December 2009 concluded that there was insufficient evidence that shift work doubled the risk of ischemic heart disease.
A study into Type 2 diabetes by researchers at Harvard School of Public Health (HSPH) found that women who work a rotating schedule that includes three or more night shifts per month, in addition to day and evening work in that period, have an increased risk of developing type 2 diabetes. The study compared women on rotating shifts with those who only worked days or evenings. They also found that extended years of rotating night shift work was associated with weight gain, which is also known to increase the risk of type 2 diabetes. Previous studies have focused on the association between shift work and risk of cancer and cardiovascular disease. Swedish research published in 2005 suggested that women who experience stress and a lack of control over their work could be at a greater risk of this type of diabetes (TUC Risks 195). Leading author of the Harvard study An Pan commented, "Long-term rotating night shift work is an important risk factor for the development of type 2 diabetes, and this risk increases with the numbers of years working rotating shifts. Those women who worked rotating night shifts for three to nine years faced a 20 per cent increased risk; women who worked these shifts for 10 to 19 years upped the risk by 40 per cent; and women who worked rotating night shifts for over 20 years were 58 per cent more at risk".
An Pan et al. Rotating Night Shift Work and Risk of Type 2 diabetes: two prospective cohort studies in women. PLoS Medicine, published online 6 December 2011.
The Working Time Regulations 1998 and the Working Time (Amendment) Regulations 2003
The Working Time Regulations implement the European Working Time Directive and parts of the Young Workers Directive which relate to the working time of adolescent workers (workers above the minimum school leaving age but below 18). Certain sectors were originally excluded from the scope of the Working Time Regulations 1998. However, most of these sectors have now been included as a result of the Working Time (Amendment) Regulations 2003.
Basic rights and protection in summary
The basic rights and protection that the Regulations provide are:
- a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they want to)
- a limit of an average of eight hours work in 24 which night workers can be required to work
- a right for night workers to receive free health assessments
- a right to 11 hours' rest a day
- a right to a day off each week
- a right to an in-work rest break if the working day is longer than six hours
- a right to 4 weeks' paid leave per year.
Extension of rights
The Regulations were amended, with effect from 1 August 2003, to extend working time measures in full to all non-mobile workers in road, sea, inland waterways and lake transport, to all workers in the railway and offshore sectors and to all workers in aviation who are not covered by the sectoral Aviation Directive. The Regulations have applied to junior doctors from 1 August 2004.
Mobile workers in road transport have more limited protection under these Regulations. Those subject to European Drivers hours rules 3820/85 will be entitled to 4 weeks' paid annual leave and health assessments if a night worker from 1 August 2003. However, the Road Transport (Working Time) Regulations 2005 extend protection to cover weekly working time – see below.
Enforcement is split between different authorities. The limits and health assessments (if a night worker) are enforced by HSE, local authority environmental health departments, the Civil Aviation Authority (CAA) and the Vehicle and Operator Services Agency (VOSA). The entitlements to rest and leave are enforced through employment tribunals.
Where the regulations do not apply
If a person is self-employed, running their own business and free to work for different clients and customers, the Working Time Regulations do not apply to them.
Certain workers are not subject to these regulations because they will be governed by sector-specific provisions. These are:
- sea transport workers, as covered by the Seafarers' Directive (1999/63/EC)
- mobile workers in inland waterways and lake transport
- workers on board sea-going fishing vessels
- air transport workers, as covered by the Aviation Directive (2000/79/EC). This Directive affects all mobile workers in commercial air transport (both flight crew and cabin crew) but not workers employed in General Aviation.
Mobile workers in road transport are only subject to certain provisions of these Regulations (as covered by the Road Transport Directive (2002/15/EC)). From 1 August 2003 workers subject to the Road Transport Directive have benefited from the entitlement to paid annual leave and the right to health assessments for night workers under the Working Time Regulations. They also gained extra working time rights under the Road Transport (Working Time) Regulations 2005 (see below).
The armed forces, the police and emergency services are outside the scope of the regulations in certain circumstances.
Sectors previously excluded from the regulations
On 1 August 2003 the Working Time Regulations extended cover to the following sectors:
- workers in air transport, other than those covered by the Aviation Directive
- all workers in rail transport
- workers in road transport, other than those subject to the Road Transport Directive
- non-mobile workers in sea fishing, sea transport, inland waterways and lake transport
- all workers in other work at sea, such as offshore work in the oil and gas industry.
Since 1 August 2004 the regulations have been extended in full to cover doctors in training with the exception of the weekly working time limits and special rules for the reference period, which will be phased in over a further five-year period (see below).
Working time limits
The general principles regarding working time limits include the following key points:
- Workers cannot be forced to work for more than 48 hours a week on average.
- Working time limits for doctors in training are being phased in gradually.
- Working time includes travelling where it is part of the job, working lunches and job-related training.
- Working time does not include travelling between home and work, lunch breaks, evening classes or day- release courses.
- The average weekly working time is normally calculated over 17 weeks. This can be longer in certain situations (26 weeks) and it can be extended by agreement (up to 52 weeks).
- Workers can agree to work longer than the 48-hour limit. An agreement must be in writing and signed by the worker. This is generally referred to as an opt-out. It can be for a specified period or an indefinite period. There is no opt-out available from the Young Workers' limits.
- Workers can cancel the opt-out agreement whenever they want, although they must give their employer at least seven days' notice or longer (up to three months) if this has been agreed.
- The working time limits do not apply if workers can decide how long they work.
Young workers may not ordinarily work more than eight hours a day; 40 hours a week.
These hours worked cannot be averaged out and there is no opt-out available. They may work longer hours where this is necessary to either:
- maintain continuity of service or production, or
- respond to a surge in demand for a service or product and provided that:
- there is no adult available to perform the task
- the training needs of the young worker are not adversely affected.
Working at night
The general principles regarding working at night include the following key points:
- A night worker is someone who normally works at least three hours at night.
- Night time is between 11pm and 6am, although workers and employers may agree to vary this.
- Night workers should not work more than eight hours daily on average, including overtime where it is part of a night worker's normal hours of work.
- Night working time is calculated over 17 weeks. This can be longer in some situations.
- A night worker cannot opt out of the night work limit.
- Young workers should not ordinarily work at night, although there are certain exceptions.
- Where a night worker's work involves special hazards or heavy physical or mental strain, there is an absolute limit of eight hours on the worker's working time each day – this is not an average.
- Mobile workers are excluded from the night work limits (but see the Road Transport (Working Time) Regulations below). Instead, they are entitled to 'adequate rest'. 'Adequate rest' means that workers have regular rest periods. These should be sufficiently long and continuous to ensure that workers do not injure themselves, fellow workers or others and that they do not damage their health, either in the short term or in the longer term.
Health assessments for night workers
The general principles relating to health assessments include the following key points:
- An employer must offer night workers a free health assessment before they start working nights and on a regular basis while they are working nights. In many cases it will be appropriate to do this once a year, though employers can offer a health assessment more than once a year if they feel it is necessary.
- Workers do not have to take the opportunity to have a health assessment (but it must be offered by the employer).
- A health assessment can be made up of two parts: a questionnaire and a medical examination. The latter is necessary only if the employer has doubts about the worker's fitness for night work.
- Employers should get help from a suitably qualified health professional when devising and assessing the questionnaire. This could be from a doctor or nurse who understands how night working might affect health.
- The health assessment should take into account the type of work that will be done and the restrictions on the worker's working time under the Regulations.
- If a worker suffers from problems which are caused or made worse by night work, the employer should transfer them to day work if possible.
- New and expectant mothers should be given special consideration.
- Special consideration should be given to young workers' suitability for night work, taking account of their physique, maturity and experience.
- Although excluded from the night work limit in the Working Time Regulations, mobile workers and workers subject to the Road Transport Directive who are 'night workers' are entitled to health assessments under the Regulations.
- A worker is entitled to a rest period of 11 uninterrupted hours between each working day.
- A worker is entitled to one whole day off a week. Days off can be averaged over a two-week period, meaning workers can take two days off a fortnight. Days off are taken in addition to paid annual leave.
- A young worker is entitled to 12 uninterrupted hours in each 24-hour period in which they work. The rest may be interrupted if periods of work are split up over the day or do not last long.
- A young worker's entitlement to daily rest can be reduced or excluded in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within three weeks.
- Young workers are entitled to two days off each week. This cannot be averaged over a two-week period, and should normally be two consecutive days. If the nature of the job makes it unavoidable, a young worker's weekly time off can be reduced to 36 hours, subject to them receiving compensatory rest.
If a worker is required to work for more than six hours at a stretch, he or she is entitled to a rest break of 20 minutes. The break should be taken during the six-hour period and not at the beginning or end of it.
Mobile workers are excluded from the usual rest-break entitlements under the Working Time Regulations. Instead, these workers are entitled to 'adequate rest'. 'Adequate rest' means that workers have regular rest periods. These should be sufficiently long and continuous to ensure that fatigue or other irregular working patterns do not cause workers to injure themselves, fellow workers or others, and that they do not damage their health, either in the short term or in the longer term.
Different rules apply to young workers. If a young worker is required to work for more than four and a half hours at a stretch, they are entitled to a rest break of 30 minutes. If a young worker is working for more than one employer, the time he or she is working for each one should be added together to see if they are entitled to a rest break. A young worker's entitlement to breaks can be reduced or excluded in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within three weeks.
Paid annual leave
The general principles include the following key points:
- Every worker – whether part-time or full-time – covered by these Regulations is entitled to four weeks' paid annual leave. This includes workers who are subject to the Road Transport Directive.
- A week's leave should allow workers to be away from work for a week. It should be the same amount of time as the working week: if a worker does a five-day week, they are entitled to 20 days' leave; if they do a three-day week, the entitlement is 12 days' leave.
- The leave entitlement under the regulations is not additional to bank holidays. There is no statutory right to take bank holidays off. Therefore a worker who is not otherwise paid in respect of bank holidays may take bank holidays as part of their annual leave entitlement in order to receive payment for these holidays.
- Workers must give the employer notice that they want to take leave.
- If a worker's employment ends, they have a right to be paid for the leave time due and not taken.
There are four classes of exceptions where some of these rules may not apply.
- In general, employers and workers can agree that the night work limits, rights to rest periods and rest breaks may be varied, with the workers receiving 'compensatory rest' (see below). They may also agree to extend the reference period for the working time limits up to 52 weeks. These agreements can be made, for example, by 'collective agreement' (between the employer and an independent trade union).
- The night work limits (including the limit for special hazards), rights to rest periods and rest breaks do not apply where: a worker works far away from where they live (this includes offshore work). Or they constantly have to work in different places making it difficult to work to a set pattern; the work involves security or surveillance to protect property or individuals; the job requires round-the-clock staffing as in hospitals, residential institutions, prisons, media production companies, public utilities and in the case of workers concerned with the carriage of passengers on regular urban transport services or in industries where work cannot be interrupted on technical grounds; there are busy peak periods, such as may apply seasonally in agriculture, retail, tourism and postal services; an emergency occurs or something unusual and unforeseen happens; where the worker works in rail transport and their activities are intermittent; they spend their time working on board trains; or their activities are linked to transport timetables and to ensuring the continuity and regularity of traffic. In these cases (except for the offshore sector) the reference period for the weekly working time limit is extended from 17 to 26 weeks. In addition workers are entitled to 'compensatory rest'.
- The working time limits and rest entitlements, apart from those applicable to young workers, do not apply if a worker can decide how long they work. A test, set out in the Regulations, states that a worker falls into this category if "the duration of his working time is not measured or predetermined or can be determined by the worker himself".
- Additional hours which the worker chooses to do without being required to by his employer do not count as working time; therefore, this exception is restricted to those that have the capacity to choose how long they work. The key factor for this exception is worker choice without detriment.
Employers need to keep records that show:
- that the weekly working time and night work limits are complied with
- workers who have agreed to work more than 48 hours a week
- health assessments for night workers to include: the name of the night worker, when an assessment was offered (or when they had the assessment if there was one) and the result of any assessment. Records must be kept for two years.
The full Department for Business, Enterprise and Regulatory Reform advice Your Guide to the Working Time Regulations.
Legal and other standards for prevention and control
The Working Time Regulations 1998, the Working Time (Amendment) Regulations 2003, and the Road Transport (Working Time) Regulations 2005 address working hours. These Regulations are dealt with in detail below. However, there are a number of more general laws that also apply to working hours. Duties may be found in the chapters of this book listed below:
- SRSC Regulations 1977 – Chapter 2, with reference to safety representatives' rights and consultation
- Health and Safety at Work etc. Act 1974 – Chapter 10, dealing with the general duties of employers and employees under Sections 2-9
- Management of Health and Safety at Work Regulations 1999 – Chapter 13, with the obligations placed upon employers to make suitable and sufficient assessments of risks to their employees. Risk assessments must take account of the provisions of the Working Time Regulations 1998, the Working Time (Amendment) Regulations 2003, and the Road Transport (Working Time) Regulations 2005 (see below)
Enforcement of the working time regulations
Enforcement of the Working Time Regulations is split between different authorities. The limits and health assessments (if a night worker) are enforced by the Health and Safety Executive, local authority environmental health departments, the Civil Aviation Authority (CAA), the Vehicle and Operator Services Agency (VOSA) and Office of Rail Regulation (ORR). The entitlements to rest and leave are enforced through employment tribunals. The Employment Tribunals Service can also help with information about making a claim or about Tribunal procedures.
If you need more information about the Regulations, either contact your own trade union, or:
- for queries about time off, rest breaks, paid annual leave and other general employment information, call the Advisory, Conciliation and Arbitration Service (ACAS) National helpline on 08457 474747 or visit the ACAS website.
- for information about tribunals, call the Employment Tribunals Service enquiry line on 08457 959 775 or visit the Employment Tribunals Service website.
What can safety representatives do?
See Chapter 21 above, Shift Workers and Night Workers, for more information.
Varying the law by collective agreement
The Working Time Regulations 1998 and the Working Time (Amendment) Regulations 2003 allow considerable flexibility by agreement. In some cases unions will want to take advantage of these flexibilities, while being careful to maintain full health and safety protection for their members. In the right circumstances flexibility may be valued by trade union members. Surveys show that many people want more control over their hours and patterns of work. Flexibility is certainly valued by employers, and the right to conclude such deals may prove valuable in bargaining towards a better work-life balance. The list below identifies the rules that can be varied by collective agreement:
- definition of working time can be extended beyond the definition in the Regulations
- reference period for 48-hour week can be extended to 52 weeks
- definition of night time can be extended for night workers
- definition of night workers can be extended to include more people
- reference period for night work can be converted from a rolling 17 week average to consecutive blocks of 17 weeks
- definition of night work involving heavy physical and mental strain can be broadened. In such cases the eight-hour night work limit is an absolute one – not an average
- night work limits can be loosened by agreement, providing that 'compensatory rest' of the same time value is given later on
- right to 11 hours' rest per day can be loosened by agreement, providing that 'compensatory rest' of the same time value is given later on
- right to 24 hours' rest in a seven-day period can be loosened by agreement, providing that 'compensatory rest' of the same time value is given later on
- definition of seven-day period can be varied. Where there is no agreement it is the beginning of each working week
- timing of rest break of 20 minutes where working day is more than six hours
- date when annual leave year begins
- period of notice before annual leave can be taken.
The 48-hour week
The UK and 14 other EU Countries now use provisions that allow individual workers to opt out of the 48-hour average weekly working time limit.
The TUC's view has always been that there should be no exemptions from health and safety law. The effects of fatigue on performance and concentration are very similar to those of alcohol, so long hours undermine health and safety. Therefore it will continue to campaign to end the opt-out.
In addition, long hours are bad for productivity, as fatigue and loss of concentration lead to workers doing long hours being ineffective. Long hours also squeeze out any chance of achieving a good work-life balance, and discriminate against women workers.
Unions will want to end long hours as soon as possible, and will be aware that the opt-out provisions may end before long. However, in some cases they will probably need to do this in stages in order to avoid loss of earnings. The opt-out is valuable to employers and may be used as a bargaining chip to ensure that there are real negotiations about ending long hours.
A number of deals have been struck that have ended excessive hours without any loss of earnings or with only a slight reduction in earnings. These deals have come about after very broad negotiations about hours and patterns of work organisation, investment and training.
Opt-out forms must specify the period of notice that the employee has to give if they want to opt back in at a later date. Unions may want to ensure that the notice period is as short as possible.
Unions will want to ensure that opt-outs are not simply imposed on workers by default. Some companies have simply sent opt-out forms to new starters with a note asking them to sign and return before they start.
Similarly, some workers have been bullied into signing and retaining opt-outs. This is simply illegal and unions will not tolerate it.
Road Transport (Working Time) Regulations 2005 – A Brief Guide
The Road Transport (Working Time) Regulations 2005 (SI 2005 No. 639) came into force on 4 April 2005. The Regulations implement European Directive 2002/15/EC, and apply to "mobile workers" (basically drivers, crew and other travelling staff) who operate on vehicles which are subject to Regulation (EC) No 561/2006 ("the European drivers' hours rules") or, in some cases, the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Transport (AETR).
Mobile workers are required to comply with the Regulations as well as the existing European drivers' hours rules. There is no opt-out from the Regulations. Mobile workers who only occasionally carry out "in- scope" work are not required to comply with the working time limits under the Regulations (for this to apply, mobile workers must meet the "occasional mobile worker" criteria given in Section 1.3). "Self employed drivers" are exempt from the Regulations until March 2009 – for this exemption to apply, drivers must satisfy criteria given in Section 1.4.
The Regulations introduce limits on weekly working time (excluding breaks and periods of availability) and a limit on the amount of work that can be done within a 24 hour period, for those who operate on night shifts (see Sections 3 and 4 on limits under the Regulations). They also specify how much continuous work can be done before taking a break and introduce daily and weekly rest limits for the crew and travelling staff. Under the Regulations, "working time" for mobile workers must not exceed:
- an average 48-hour week (normally calculated over a four-month reference period)
- 60 hours in any single week
- 10 hours in any 24-hour period, if working at night.
However, use has been made of two derogations contained within European Directive 2002/15/EC, which allow for employers to extend the reference period for the average 48 hour week from 4-6 months and allows for night shift employees to exceed the 10- hour working time limit. These provisions are both subject to a collective or workforce agreement being in place (see Section 7.1 – "relevant agreements").
This guide sets out various means for calculating the average working week (see Section 3.4 – "calculating average weekly working time").
Employers are required to monitor working time and should do what they can to ensure that the limits are not breached. Records need to be kept for two years. If there is no employer, the Agency, Employment Business or even the worker concerned must monitor their working time. Guidance is also provided on how the tachograph should be used to monitor working time. Further details on record keeping are provided at Section 6.
The Vehicle and Operator Services Agency (VOSA) enforce the Regulations in Great Britain. The Driver and Vehicle Testing Agency (DVTA) enforce the working time regime used in Northern Ireland.
Instead of the standard daily, weekly and in-work rest breaks set out by the Working Time Directive, some rail and road workers are entitled to 'adequate rest'. Trade unions may want to adopt the common sense position that the time value of the breaks and rest periods set out in the Working Time Directive are intended to be the minimum standard to achieve proper protection for these workers.
In some cases, the Working Time Directive allows for 'compensatory rest' – some flexibility about when the breaks and rest periods are taken. This could provide a starting point for negotiation. Unions may also want to try to ensure that adequate rest arrangements are subject to periodic review in order to make sure that they are working and to see whether they can be improved.
It is clear that many employers who are already covered by the Working Time Directive still do not understand the law or are breaking it deliberately. Some 6 million workers have already gained extra holidays from the directive, but official statistics suggest that three-quarters of a million non-union workers are not getting what they are due. Trade unions will also want to negotiate to ensure that public holidays are extra to the four weeks' annual leave in the new regulations.
Keep up to date with the latest TUC guidance on working time.
(in alphabetical order)
Hazards magazine factsheets
- No. 106 While You Were Sleeping
- No. 83: Drop Dead – Overwork
- No. 81: Give us a Break! Toilet Breaks Campaign
- No. 78: Get a Life! Work-life Balance
- No. 69: Not What We Bargained For: Changing Workplaces
- No. 49: Overwork: Fatigue, Long Hours and Pressure
- No. 34: Working Hours and Health
£3.75 each for union subscribers; £7.00 for non-subscribers.
Useful resources on the HSE web page.
- Managing Shift Work (pdf) HSG256
- Other HSE web-based advice on shift work
- HSE web-based advice on fatigue
- HSE operational circular – Working Time Regulations
- HSE Research Report RR446 "The development of a fatigue risk index for workers including a calculator tool"
- HSE research on the link between shift work and breast cancer.
- Carers in the Workplace: a Guide to Negotiating Flexible Working and Leave
- Work-Life Balance
- Working Time – a Guide to the Regulations
Office of Rail Regulation (ORR)
OSHA Europe – European Agency for Safety and Health at Work
E-FACTS 57: Family Issues and Work-Life Balance
- workSMART 'It's about time' web page with legal summaries; a chance to tell your stories about working time; detailed questions and answers and so on/
- TUC work/life balance web pages with research and campaign materials
- TUC working time and health and safety web resource page
- Why Employers' Organisations Are Wrong About The 48-hour Week
- Essential information for safety representatives: Keep up to date on health and safety by reading Risks, the TUC's weekly e-bulletin for safety representatives. Register to receive Risks weekly.
Trade union information
- Many unions provide guidance on working time. The website addresses of all trade unions are on the TUC website.
- Hazards magazine has listed the health and safety pages of most trade unions.
- Contact your union or visit your union's website to find out if it produces any guidance on working time. Unite health and safety briefing: "Shift Work and Night Work"; Unite booklet: Working Time Regulations and leaflet Working Hours and Health (revised June 2007) Resources can be downloaded direct from the Unite website
Issued: 5 April, 2013