The Working Time Regulations 1998: Guidance on the legislation

Appendix 4: Scope of the regulations

On-call workers

"On-call" time can amount to working time when a worker is required to be at his place of work during that "on-call" time. When a worker is permitted to be away from the workplace when "on-call" and accordingly free to pursue leisure activities, "on-call" time does not amount to 'working time' until they are called upon by the employer.

Periods of on-call duty carried out in a place stipulated by the employer ie hospital, can constitute working time in its entirety.  This can also apply even if the employee is provided with a bed during that "on-call" time and is able to sleep during periods of inactivity.

Unmeasured and partly unmeasured working time

Regulation 20(1) disapplies most of the working time limits if a particular worker's hours are not measured or predetermined on account of the activity in which they are employed, or if they can be determined by the worker personally. 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. The categories of worker cited in the Regulations are only examples and are not exclusive. Regulation 20 does not disapply Regulation 8 (patterns of work).

Maximum weekly working time – Regulations 4 and 5A

Weekly working limit - adult workers

Employers have to take all reasonable steps in keeping with the protection of the workers' health and safety, to ensure that workers do not work for more than an average of 48 hours in each seven days (reg.4). The hours to be counted include overtime.

Doctors in training have a variation on these limits it means:

• a 48 hour working week, calculated over a period of 26 weeks. Doctors are entitled to choose to work additional hours if they wish.
• a period of 11 hours continuous rest a day (or compensatory rest to be taken at another time if this is not achieved).
• a day off each week , or two days off in every fortnight (or compensatory rest)
• a 20 minute rest break every 6 hours (or compensatory rest)

Junior doctors will receive protection under whichever arrangements are more beneficial to them.

The directgov and business link websites contains examples of how average hours can be calculated.

Weekly working limit - young workers

The working limits for young workers are 8 hours a day and 40 hours a week. These are absolute limits which are not subject to averaging over a reference period. Individual young workers cannot agree to exceed the limits (it is not possible to opt-out of these limits).

In general, young workers must not work between 10 pm and 6 am (known as the restricted period). This can be varied in a contract to the period between 11 pm and 7 am. Some young workers are in certain circumstances allowed to work at night.
Regulation 27A allows the limits to be relaxed if all of the following apply:

• their employer requires him to undertake work which is necessary either to maintain continuity of service or production or to respond to a surge in demand for a service of product;
• no adult worker is available to perform the work;
• performing the work would not adversely affect the young worker's education or training.

If these conditions apply, the following exceptions are allowed:

Where the night work exceptions apply and the young worker is required to work during a period that would otherwise be a rest period or rest break:

• the young worker should have adult supervision where this is necessary for their protection; and
• they should be given an equivalent period of compensatory rest immediately after the end of the work period.

Working for more than one employer

If a person works for more than one employer, the total number of hours they work has to be taken into account when assessing compliance with the weekly limit. It would be good practice for employers to make reasonable enquiries to discover if their employees are working elsewhere and to ensure that the average of 48 weekly working hours (8 hours a day and 40 hours a week for young people) is not exceeded. This does not apply where the other work is conducted either in a genuinely self-employed capacity or in one of the excluded sectors since neither of these are working time for the purposes of the Regulations.

If it is likely that the weekly limit will be exceeded, the employer has either to take reasonable steps to ensure the limit is complied with, or should ask the worker to enter into an agreement (see next section) that the limit should not apply in their case. In this context "reasonable steps" could include having to restrict the number of hours the person works for them. If an opt-out is agreed the employer should also advise the worker that they must make similar arrangements with their other employer(s) even if they only work a few hours for them.

Where possible the various employers should cooperate with each other to ensure that they are all complying with the Regulations. The duty, however, ultimately rests on each individual employer, and they will only be in compliance if they can show that they have taken all reasonable steps.

Agreement to exclude the maximum (opting-out)

In order to permit an element of individual choice, Regulation 5 provides that an individual may agree to work more than the 48 hour maximum. Such an agreement:

• must be in writing;
• may relate either to a specified period or apply indefinitely; and
• shall be terminable by the worker with seven days notice to the employer (unless the agreement itself provides for a longer notice period of termination not exceeding three months).

Once signed, any dispute about an agreement should be resolved through normal dispute resolution procedures including the involvement of an Employment Tribunal or ACAS as appropriate. HSE staff should not get involved in such disputes.
When considering opt-outs, the following should be noted:

• the opt-out only applies to the weekly working limit. The remainder of the Regulations still apply;
• this is only an agreement to work more than the 48-hour maximum. The worker should still only work an average maximum of 78 hours per week since the Regulations provide for a minimum of 90 hours per week rest;
• young workers cannot opt-out of the working time limits.
• if the worker has more than one employer, they will have to agree an opt-out with each of their employers; and
• employers have to keep records of their employees who have signed an opt-out. A list of names should be sufficient to comply with this duty: there is no need to record the hours worked by these employees.
• the opt-out is one of several issues which have recently been through a negotiating process in Europe. However, no agreement was made to amend the Directive so UK law remains unchanged, and workers are still able to opt-out of the weekly working time limits.

Measures relating to night-time working

What is night work?

The definitions in Regulation 2 of 'night time', 'night work' and 'night worker' are central to the application of this Regulation. In general terms a person is a night worker if they work at least three hours during night time on the majority of days they work.

In 1999 the High Court of Northern Ireland interpreted the definition of a night worker to mean a worker who works at least three hours of their working time at night as a "regular feature of their employment" (Burns v United Kingdom). This is a broad interpretation of the definition in Regulation 2 and is sufficient to include most normal shift work patterns. Although not binding in the mainland courts, this is a persuasive authority and should be taken into account when considering if a person is in fact a night worker.

The night work limits

The basic night work limits are as follows:

• adult workers: normal working hours must not exceed an average of eight hours in a 24-hour period. This is calculated over a reference period which is one of 17 weeks, 26 weeks for doctors in training, 52 weeks for offshore workers, unless modified or excluded by a relevant agreement (see work involving special hazards);

Under the original Regulations night work calculations did not take overtime into account. This was changed and the calculation should include all hours worked.
Employers must take all reasonable steps to ensure the night work limits are complied with. The method to be used for calculating the average hours is contained in Regulation 6(5), and examples of its use are in the guidance on the directgov and business link websites.

Disapplication of night work limits

Subject to the provision of compensatory rest (reg.24), the night work limits do not apply in the circumstances listed in Regulation 21. In summary these are:

• the worker's places of residence and work are distant from one another, including cases where the worker is employed in offshore work, or where different places of work are distant from one another;
• where the worker is engaged in security and surveillance activities and a permanent presence is required;
• where there is a need for continuity of service or production eg health care; work at docks and airports; press, radio, television etc; gas, water and electricity production; industries in which work cannot be interrupted on technical grounds; research and development activities, the carriage of passengers on regular urban transport services;
• where there is a foreseeable surge of activity;
• where the worker's activities are affected by an unusual and unforeseeable circumstances/exceptional events; or an accident or the imminent risk of an accident.

To qualify for the exception where a worker's places of residence and work are distant from one another, the worker is most likely to be employed on duties of a peripatetic nature, where they visit one or more locations nightly, and where they use their home as the starting point of their journey. Time spent commuting to a fixed place of work from a worker's home is not considered to be working time for the purposes of this exception.

All of these derogations must be lawfully applied and it is advisable that employers should document the reasons why they consider this to be the case. In particular it should be noted that the Directive makes it clear that the protection it intends to afford to workers should not be subject to purely economic considerations.

Work involving special hazards

Where the work involves special hazards, or heavy physical strain, or mental strain, no night worker may work for more than eight hours in a 24-hour period. Overtime hours are included in this calculation. This is an absolute limit and is not subject to averaging over a reference period.
Work falls into the special hazards category if it is:

• identified as such in a relevant agreement which takes account of the specific effects and hazards of night work; or
• recognized in a risk assessment carried out in accordance with the Management of Health and Safety at Work Regulations 1999 Regulation 3 as involving a significant risk to the health and safety of the workers.

In the absence of a definition in the regulations, words and expressions which are also used in corresponding provisions of the Working Time Directive are assigned the same meaning in the regulations as they have in the Directive. The term "special hazards" is not defined in the regulations, nor is it defined in the Directive, therefore, for practical reasons, the term 'special hazards' should be considered to be equivalent to 'significant risk'.

The absolute limit in Regulation 6(7) applies when significant risks to the health or safety of the workers remain after the employer has assessed the risks and taken steps to reduce them as far as is reasonably practicable. Any concerns about application of this Regulation should be discussed with the relevant Inspector to determine whether action needs to be taken under health and safety legislation.

Health assessment and transfer of night workers to day work – Regulation 7

Regulation 7(1) requires an employer to offer a free health assessment to any worker who is to become a night worker (unless a previous assessment is still valid) and to give night workers the opportunity to have further assessments at regular intervals. Workers do not have to take up the offer of the free health assessment.

The meaning of free is defined in Regulation 7(3). There is no prescribed procedure for conducting a health assessment, but as a minimum, employers could construct a screening questionnaire compiled with guidance from a qualified health care professional.

Regulation 7(2) requires an employer to offer a free health and capacities assessment to any young worker who is assigned to work the period between 10 pm and 6 am (unless a previous assessment is still valid) and to give such workers the opportunity to have further assessments at regular intervals. Young workers retain this right even if they work within an excluded sector.

A health and capacities assessment differs from a health assessment and should take into account such things as physique, maturity, experience and competence to undertake the night work that has been assigned. Regulation 7(2) does not apply where the work is of an exceptional nature (reg.7(4)). Exceptional nature is not defined but an example may be where no reasonable alternative exists and a young worker has to cover for a sick adult.

The requirements in Regulation 7 complement the duty in the Management of Health and Safety at Work Regulations 1999 reg.3 to make a suitable and sufficient assessment of the risks to the health and safety of employees.

Employers also have a duty (reg.7(6)) to transfer a night worker from night work to more suitable work, which is not night work, if a registered medical practitioner has advised the employer that the worker is suffering health problems considered by the practitioner to be connected with night work. This duty is qualified by the phrase 'where it is possible'.

Patterns of work - Regulation 8

Regulation 8 requires an employer to grant adequate rest breaks where a pattern of work organized by the employer, eg uninterruptible or monotonous, puts the health and safety of a worker employed by them at risk.

This Regulation requires an employer to grant regular breaks in order to reduce the risk caused by this type of work. As such, this provision overlaps with general health and safety legislation. Therefore, if the risk is not controlled adequately or effectively by application of Regulation 8 the issue can be referred to the relevant inspector.

Records - Regulation 9

Regulation 9(a) requires an employer to keep records of an employee’s daily working hours, to show whether the limits specified for working time (regs.4(1) and 5A(1)) and night work (regs.6(1) and (7) and 6A), and the requirements for health and health and capacity assessments (regs. 7(1) and (2)) have been met.

Regulation 9(b) requires the employer to retain the records for two years from the date they were made.

Exceptions - Regulations 18-27

Regulations 18-27 disapply particular parts of the Regulations, either in relation to workers engaged in certain kinds of work or where particular circumstances arise. There is also provision for groups of workers and their employers to agree to modify or exclude the application of particular regulations.  the guidance below states where an exception could apply in relation to a particular requirement.

Excluded sectors – specific services - Regulation 18(c)

Regulation 18(c) provides an exception for 'certain specific services' or 'certain activities in the civil protection services' where characteristics peculiar to these services or activities 'inevitably conflict' with the provisions of the Regulations listed. Examples of specific services are given as the armed forces or the police, ie they are identifiable organizations, rather than a type of service. Services included in 'the civil protection services' category are defined in Regulation 2.
It will be up to the relevant organizations to identify the activities that inevitably conflict with the Regulations. Consideration as to what falls within this category will have to be dealt with on a case-by-case basis.

Agreements - Regulation 23

For the purposes of these Regulations, there are three types of agreement that can be reached between employers and workers:

• a 'workforce agreement' made between an employer and the workforce employed by him or their representatives. This applies in situations where there are workers who are not represented by a recognized trade union, and any such agreement is only valid if the conditions in Schedule 1 to the Regulations are met. This type of agreement should be signed by representatives of the workforce or, where there are fewer than 20 people employed, by the majority of the workforce. If a worker has any part of their conditions determined by a collective agreement they cannot be subject to a workforce agreement. A collective agreement therefore takes precedence over this type of agreement;
• a 'collective agreement' is made between an employer and an independent trade union as defined in the Trade Union and Labour Relations (Consolidation) Act 1992. It is an agreement made by, or on behalf of, one or more trade unions and one or more employers or employers' associations, and relating to matters detailed within the Act, which includes the 'terms and conditions of employment';
• any other agreement in writing that is legally enforceable as between the employer and worker, eg a contract of employment. This may include provisions of a workforce or collective agreement. For the purposes of this guidance, this form of agreement could also describe an individual opt-out from the 48-hour limit provided it is made between the employer and the individual worker.

Although the format of a workforce agreement is not specified, it is recognized as requiring several essential elements. Schedule 1 of the Regulations lists a set of conditions that must be satisfied for a workforce agreement to be acceptable:

• the agreement is written;
• it should have effect for no more than five years;
• it should apply to all relevant members of the workforce or particular workforce group, eg a location such as a whole factory, or department;
• it should be signed by the representatives of the workforce or group;
• before it is signed, all the workers to which it is intended to apply must have seen a copy of the agreement, along with sufficient guidance to enable them to understand it.

It is possible that in a particular situation a combination of agreements are in force, eg a collective agreement covering unionized members of the workforce and a workforce agreement for the others. It is also possible that non-union members will be bound by the terms of a collective agreement if these have been expressly incorporated into their individual contracts.

Compensatory rest - Regulation 24

Workforce or collective agreements can modify or exclude the requirements relating to night work only if provision is made for compensatory rest to be provided to the workers who are affected. In general where a worker is required to work during a period which would otherwise be rest period or rest break, the employer must (wherever possible) allow the worker to take an equivalent period of compensatory rest (reg.24(a)). In exceptional cases, where this is not possible, the employer must afford the worker such protection as appropriate to safeguard the worker's health and safety (reg.24(b)).

An equivalent period of rest should be considered the same length as the period of rest that the worker missed, and because of the Jaeger judgement, it must be provided immediately after the end of the work period and before the next period begins.

In practice, cases where it is not possible to take compensatory rest due to 'exceptional circumstances' will be rare and when they occur the reasons should be self-evident, eg major breakdown of essential plant. Where these exceptional circumstances do occur and the employer affords 'such protection as may be appropriate', what is appropriate should be identified by the risk assessment required by the Management of Health and Safety at Work Regulations 1999 reg.3. Concerns about application of this regulation should be discussed with the relevant inspector to determine whether action needs to be taken under health and safety legislation.

Workers in the armed forces - Regulation 25

Regulation 25 exempts the Armed Forces from certain requirements of the Regulations. These only apply to those service personnel who are employed directly by the Crown to serve as active members of the armed forces. It does not apply to civilian staff employed in the armed forces in administrative or similar capacities.

Doctors in Training - Regulation 25A

Regulation 25A modifies regulation 4 in its application to workers who are doctors in training.  See Maximum weekly working time – Regulations 4 and 5A.

Enforcement, offences, and remedies – Regulation 28

Regulation 28 details which organisations enforce WTRs and for which workers.  In brief, other organisations involved are:

• CAA : all mobile workers in general, corporate and civil aviation, which includes cabin and flight crew;
• VOSA : all mobile workers, which includes drivers and crew of heavy goods vehicles over 3,500kg gross vehicle weight and public service vehicles with more than 8 passenger seats; and
• MCA : all mobile workers in inland waterways and lake transport under Merchant Shipping (Working Time Inland Waterways) Regulations 2003 (non-mobile workers fall to HSE/LAs).

Regulation 29(1) makes it an offence for an employer to fail to comply with any of the relevant requirements. The offences are triable either way. Regulation 29(2) also provides for offences and penalties in relation to the exercise of an inspector's power, including a custodial sentence for contravention of any requirement or prohibition imposed by an improvement or prohibition notice.

Regulation 30 gives workers the right to present a complaint to an employment tribunal if their employer has refused to permit them to exercise any right they have under the regulations specified in Regulation 30(1)(a) and (b), eg their entitlement to rest breaks, daily and weekly rest, and paid holiday. Questions or complaints concerning regulations whose remedy is through the employment tribunal should be referred to the local office of the Employment Tribunal Service.

Special classes of persons

Regulations 36-43 contain particular provisions relating to the following special classes of persons:

• Agency workers
• Crown employees
• Armed forces
• House of Lords and House of Commons staff
• Police service
• Non employed trainees
• Agricultural workers