The Working Time Regulations 1998: Guidance on the legislation

Formerly OC 1/6

Open Government Status: Fully Open
Author Unit/Section: FOD Legal and Enforcement
Target Audience:: All Visiting Officers and their managers

Summary

This document replaces OC 1/6 and OC 1/7. The document instructs staff on how to determine the appropriate enforcement action to achieve compliance with the provisions of the Working Time Regulations 1998 and amendments (WTR).

Introduction

Working time is defined as:

'working' at the 'employer's disposal' and 'carrying out his activities or duties' (NB: all three of these elements must be satisfied);
periods when the worker is receiving relevant training; and
any additional period specified in a relevant agreement.

Travel to work is not working time unless it is actually part of the work activity.

Worker means a person undertaking any work or services under a contract of employment whether that contract is oral or written. A contract of employment can in general terms be recognized as existing where someone works and that work is controlled by another person in various ways, for example, the time it is performed. It is, however, not always obvious whether there is in fact a contract of employment, and this may be the case where, for example the work is arranged by an employment agency or carried out on a contract basis. In such cases if there is an issue as to a worker's employment status that status can ultimately only be determined by the courts following consideration of the particular facts.

'Young worker' is defined as follows:

in England and Wales: a worker who has attained the age of 15, but not the age of 18, and is over compulsory school-leaving age for the purposes of the Education Act 1996; and
in Scotland: over school age for the purposes of the Education (Scotland) Act 1980.

Since 1998 there has been a single school-leaving date In England and Wales: this is the last Friday in June in the school year in which the child reaches the age of 16.

The Regulations apply to all workers, with certain exceptions such as those who are self-employed. Certain regulations do not apply to the following categories of worker:

Workers employed as a domestic servant in a private household including young workers (reg.19); or workers who determine their own hours or patterns of work (reg. 20). The application of the Regulations is also limited in respect of specific services, where those activities would conflict with the provisions of the Regulations (reg.18). These include the armed forces, the police and the civil protection services (as defined in reg. 2).

In considering this exception, it is important to note that it only applies to "specific activities". This means that these services generally have to comply with the Regulations, but there is some leeway under special circumstances, eg for the police when dealing with an emergency civil disturbance situation.

In addition to the above, individual employers can decide, in agreement with their workers, what other categories of activity constitute working time. However, such agreements cannot alter or narrow the statutory definition of working time

Both HSE and local authorities (LAs) enforce the relevant requirements of the Regulations. Enforcement is in relation to premises for which they are each responsible for enforcing the relevant statutory provisions under the Health and Safety (Enforcing Authority) Regulations 1998. HSE and LAs enforce the following relevant requirements:

Regulation 4(2) - maximum weekly working time
Regulation 6(2) - night work limits
Regulation 6(7) - night work special conditions
Regulation 7(1) - health assessments for night work (adults)
Regulation 7(2) - health assessments for night work (young workers)
Regulation 7(6) - worker transfer from night work
Regulation 8 - work patterns and adequacy of rest breaks
Regulation 9 - record keeping
Regulation 24 - compensatory rest as it applies to reg.6(1), 6(2),6(7) or 6A

Enforcement action, which must be proportionate, consistent in approach and transparent, may be required in two general circumstances:

where an investigation reveals that an employer is failing to comply with the Working Time Regulations themselves
where the investigation reveals that the hours being worked give rise to health and safety risks (NB: it is possible that there are health and safety risks even though the working limits are being complied with)

Within HSE the WTRs are handled on a reactive basis by Visiting Officers (VOs) and HSE Inspectors. VOs handle issues which are non-risk based only and do not involve risks to Health and Safety.

For the purposes of the EMM, these Regulations fall under the description of "compliance and administrative arrangements" since they are not in themselves risk based.

Action

Visiting Officers should use this guidance when:

providing advice
investigating concerns on non-risk based working-time issues
escalating issues of significant risk to inspectors
liaising with other directorates and Acas/Employment Tribunal Service

HSE Inspectors should use this guidance when:

considering or taking enforcement action against a duty holder for non compliance of the Working Time Regulations;
following a health assessment of cases involving nightworking restrictions due to 'special hazards, workers are identified as at risk
there are health and safety issues alleging working hours causing health and safety risks (HSW Act s.2)
a work rate is causing health and safety risk (HSW Act s.2 or more specific legislation, eg manual handling or DSER)
there are allegations of risks to a third party, whether co-workers or members of the public, due to a worker's working hours (HSW Act ss.2 or 3 – the WTR do not cover risks to third parties)

If a notice is required inspectors should use the LP1 WTR Improvement Notice.

When providing advice and guidance

VOs provide advice and guidance on the regulations to both HSE staff and external enquirers. The range of situations appropriate for VOs to handle includes:

advising dutyholders on the application of the WTR and guidance on how to comply;
referring workers and dutyholders to Acas where appropriate;
handling queries from employers' organisations, trade unions and individuals;
responding to requests for talks from external organisations (where charges should be made in accordance with current instructions).

When dealing with concerns receipt and investigation

Staff receiving matters of concern should follow the concerns handling system and input concerns in the usual way.

Concerns should first be assessed whether they should be referred elsewhere:

to an inspector for cases involving significant health and safety risk, or
to the concerns team where the issue does not involve WTR.

VOs are responsible for recording what action has been taken. Inspectors must keep VOs informed of the action taken on concerns referred to them.

Working Time concerns should be prioritised based on:

whether HSE has sufficient information to pursue the concern;
the potential seriousness of the issue in terms of risk to the worker/s;
the seriousness of any potential breach; and
the likelihood that sufficient evidence can be gathered to support further action.

Appendix 6 contains a flow chart of the process from the receipt of a concern through to appropriate resolution.

When investigating concerns with a WTO visit

The most efficient method of investigation should be selected to gather information for the most effective outcome. This is likely to result in the majority of concerns being investigated by non-visit methods, eg gathering information by phone or following up by letter if required.

Visits will only be necessary where other methods are ineffective and, because of the nature of the concern. This may be the case where an employer is reluctant to provide copies of working hours records, perhaps because they are not in a readily available format, or statements are necessary and these cannot be taken at an HSE office. VO's are entitled to take copies but not originals of documents relevant to WT investigation (WTR Sch.3 Para 2(2)(f)).

The nature of a WTR concern investigation means that most visits may be pre-notified. Seeking a mutually convenient arrangement with employers should reduce ineffective visits and aid planning for the most efficient use of visit time.

VO's are issued with a specific WTR warrant which entitles them to exercise the powers specified in regulations 28(7) and paragraphs 2(2), of schedule 3 of the working time regulations 1998. Paragraph 2(2)(a) authorises entry at any reasonable time to a duty-holders premises, where this is necessary to the investigation, however when visiting a duty-holders premises for the purposes of WTR investigations the VO Authorisation to visit should not be relied upon.

Anonymity

Visiting officers should maintain an open approach when arranging and conducting visits, advising, at the outset, that they are responding to a concern if the complainant has given permission. An employer may ask if the visit is in response to a concern, in cases where the complainant has not given permission WTOs should advise that the visit is in response to a concern but not disclose the complainant's details. Individuals who make a concern should be made aware of this. These visits will require sensitive handling and VOs may find themselves under pressure to reveal the source of the concern. They must not do so but, should conflict arise, they should withdraw from the situation.

Enforcement reports

Following an investigation, VOs should complete a concern follow-up and contact report in accordance with current instructions. In addition, where enforcement action may be appropriate, VOs should complete an enforcement report which should be adapted from the standard HSE investigation report. The report will form the basis for the decision by the Principal Inspector (PI) to refer the matter to the appropriate FOD inspector for further action.

Visiting officers should consult the Enforcement Guide before proposing enforcement action.

The report should be submitted to the PI within 2 weeks of the final intervention by the VO. The PI should refer such reports to the appropriate FOD inspector within one week so that ensuing enforcement action is timely.

Appendices 2 and 3 contain tables which help apply EMM principles to WTR requirements enforced by HSE and provide further guidance on the dutyholder and strategic factors that might be taken into consideration. This should be used as a framework in all investigations as an aid to consistency.

Background

The Regulations came into force on 1 October 1998. They are made under the European Communities Act 1972 and implement the provisions of the Working Time Directive (93/104/EC) and some elements of the Young Workers Directive (94/33/EC) and Horizontal Amending Directive 2003/34/EC. The Department for Business, Energy and Industrial Strategy (BEIS) have policy lead for the regulations. They impose obligations on employers in relation to the working time of workers over the minimum school leaving age, including the provision of rest breaks, and night work restrictions.

Employment Tribunals can hear concerns where worker entitlements are not complied with, eg rest period/breaks and paid annual leave are denied or an employee suffers detriment linked to the regulations.

Further references

This document should be read in conjunction with the Regulations themselves and with the guidance on Gov.uk – Pay and Work Rights.

Requests for general information from the public can be referred to Acas as they provide this service under an agency agreement with BIS, callers should ring the Acas National Helpline on 0300 123 1100 or use the Acas Online Helpline.

Contacts

FOD Legal and Enforcement