In Chris’ latest Coffee Break Briefing, he explores the different types of statutory leave, highlights the key enforcement risks and potential claims and outlines the latest changes and new entitlements employers need to be aware of.
Q: What are the rules on the 48-hour week?
A: The general rule is that workers must not work more than 48 hours per week. The limit is on ‘average’ weekly hours and is calculated over a standard 17-week reference period. This means that a worker may work more than 48 hours in any particular week provided that the average over the reference period does not exceed 48 hours. In some special cases, the reference period is extended to 26 weeks. It is also possible for a collective or workforce agreement to extend the period to 52 weeks where this is justified by an objective, technical or organisational reason. Employers are under a duty to take all reasonable steps to ensure that the 48-hour limit is complied with by all workers.
Q: What is the opt-out?
A: An individual worker can enter into an agreement with his employer to opt out of the 48-hour limit. The agreement to opt out can only be made on an individual basis, so it is not possible to opt out of the limit by means of a collective or workforce agreement. The opt-out agreement must either relate to a specified period of time or apply indefinitely. In the absence of any longer notice provision, the opt-out can be terminated by the worker giving not less than seven days’ notice in writing to the employer. A longer period of notice may be provided for in the agreement but this must not exceed three months.
Q: Can all workers opt out of the 48-hour working week?
A: Young workers (who are above compulsory school age but below the age of 18) cannot opt out of the maximum working week. A lower maximum number of working hours per week applies to young workers and they are not permitted to work more than 8 hours a day or 40 hours per week. Also, night workers cannot opt out of the maximum working week. Night workers are those who normally work at least three hours a day between 11pm and 6am. The Working Time Regulations provide that an adult night worker’s normal hours of work shall not exceed an average of eight hours per day. In practice however, this restriction can be averaged out over the week, meaning that night workers can work up to 48 hours per week, for example in four 12-hour shifts. The limit on night workers’ working time is much stricter if their work involves "special hazards or heavy physical or mental strain".
Q: What rest periods are workers entitled to?
A: Workers are entitled to daily rest of 11 consecutive hours in each 24-hour period. They are also entitled to an uninterrupted rest period of 24 hours in each seven-day period or 48 hours in each 14-day period. Where the working day is more than six hours long, workers are entitled to an uninterrupted rest break of at least 20 minutes which they can spend away from their work station. These rest periods apply to adult workers and young workers are entitled to longer minimum rest periods. It is possible to exclude or modify the provisions relating to rest periods for adult workers through collective or workforce agreements.
Q: What are the remedies for breach of the 48-hour working week?
A: Individuals who believe that their employer is acting in breach of the Working Time Regulations can bring a claim in the Employment Tribunal. If the complaint is upheld, the tribunal must make a declaration and may award compensation. Workers can also bring a tribunal claim if they suffer a detriment as a result of refusing to comply with a requirement imposed by their employer that contravenes the Regulations, such as exceeding the 48-hour limit. In addition to individual complaints, responsibility for enforcing the 48-hour limit rests with the Health and Safety Executive and local authorities. An employer found to be in breach of the provisions is guilty of a criminal offence and may be fined. The HSE or local authority also has the power to issue an improvement notice requiring the employer to remedy the breach.
Read the other articles in this newsletter:
48-hour week opt-out to remain
"Self-employed" workers can claim unfair dismissal
Consultation regarding new right to request training
Keeping a written record does not amount to a detriment
STOP PRESS - New Equality Bill
Register to receive this newsletter each month by email.
