The Working Time Regulations 1998 currently state that employees in the UK must not work more than 48 hours per week over a 17 week period. Employees may opt out of this maximum by signing an agreement with their Employer which allows them to work up to a maximum of 78 hours a week.
The government states that allowing employee’s to opt out of the Working Time Regulations helps businesses cope during busy times and also allows employees to earn overtime if they choose. However, over the past decade, Trade Unions have called for the EU to enforce the maximum 48 hour working week to protect employees’ health as currently, approximately 3.3 million employees work more than 48 hours a week in the UK.
Ministers in Europe have now reached a new agreement securing the right for UK workers to choose to work longer then 48 hours a week which means that overtime can continue.
Various issues have been agreed in relation to the Working Time Directive. In particular:
- The opt-out from the maximum 48-hour working week has been preserved.
- On-call time is to be split into active and inactive on-call time, with active on-call time being counted as working time, and inactive time being neither working time nor rest time.
- A protective cap on the number of hours that can be worked will apply to an individual who has opted out of the 48-hour working week. The cap will be set at 60 hours per week.
- Certain safeguards have been imposed on the use of the opt-out: in particular, it cannot be signed until the worker has been employed for a month, and there will still be a cap of 60-hours on average.
What you need to do
A worker may opt-out of the 48 hour limit on the working week by entering into an individual written agreement with their employer.
- Check your employment contracts - we do not recommend that you include an opt out agreement within your employment contracts, as this could be perceived as forcing an employee to opt out in order to get the job position.
- We recommend that you and your employee sign a separate letter, agreeing that the employee will ‘opt out’ of the maximum 48 hour week.
- It is recommended that you keep up-to-date records of all opted-out workers. In practice this means that employers merely need to do is keep records of those workers who have signed an opt-out.
- Remember: you can not treat any employee to his detriment (for example, a demotion or a failure to receive a salary increase), just because they do not want to sign an ‘opt out’ agreement. All workers are protected from being discriminated against for asserting an entitlement under the WTR and it is automatically unfair to dismiss an employee because of this assertion.
This opt-out agreement may either relate to a specified period or apply indefinitely, subject to the worker's right to terminate the agreement - which cannot exceed three months' written notice.
Where the 48 hour limit applies, you must take all reasonable steps, in keeping with the need to protect health and safety, to ensure that this limit is complied with. Failure to do so is an offence punishable with a potentially unlimited fine.
- You must take reasonable steps to ensure that a worker does not work more than an average of 48 hours in any seven day period, including overtime.
- Remember: All of a worker's working time must be taken into account when calculating whether a worker has worked more that 48 hours in any seven day period, not just the hours worked for you. In order to discharge your duty to take reasonable steps, you should therefore discover if your workers carry out any additional work for other organisations.
Be aware that for young workers (those over compulsory school age but under18) there are more stringent daily and weekly limits. They may not work more than 8 hours in any one day and 40 hours in any one week (Monday to Sunday) respectively. Also, whereas the working hours of adult workers are averaged over a reference period there are no averaging provisions for young workers.
If you require any further information about the Working Time Regulations, please contact Verity Slater of Follett Stock either by email at verity.slater@follettstock.co.uk, or by telephone on 01872 247284.
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