Working time and rest breaks
What are the Working Time Regulations?
The Working Time Regulations 1998 came into force on 1 October 1998 and have been amended in part by the Working Time Regulations 1999 and the Working Time (Amendment) Regulations 2003. The Regulations implement the European Working Time Directive into UK law. They are primarily health and safety legislation and are intended to protect workers from the risks that arise out of working excessively long hours or for long periods without breaks.
The Regulations provide that all workers should be entitled to:
- A maximum average working week (inclusive of overtime) of not more than 48 hours (the averaging period to be 17 weeks or longer in some cases) [an absolute maximum of 40 hours a week in the case of young workers and a maximum working day of 8 hours in the case of young workers except where required for continuity of service or a surge in demand, or where no adult worker is available, or where it would not adversely affect a young workers education or training]
- A 20 minute rest break where the working day is longer than 6 hours [30 minutes rest in the case of young workers where the working day is longer than 4 ½ hours*];
- A minimum daily rest period of 11 consecutive hours in each 24 hour period [12 hours rest in the case of young workers];
- A minimum of 24 hours rest every 7 days (or 48 hours every 14 days) [48 hours rest in every 7 days in the case of young workers]. This rest period does not have to include a Sunday;
- A restriction of 8 hours night work in every 24 hour period, the restriction of 8 hours to be averaged except where the work involves special hazards or heavy physical or mental strain in which case it can never exceed 8 hours; and
- Free health assessments [and capacities assessments in the case of young workers] prior to workers being assigned to night work and at regular intervals thereafter;
- 5.6 weeks’ paid annual leave - apart from the excluded sectors no opting out of the annual leave provisions, no carrying over of holiday from one annual leave year to the next and no payments in lieu except on “termination of employment”;
- Protection through the Employment Tribunals from suffering detrimental treatment or dismissal by the employer for taking entitlements under the Regulations.
- All “employers” under the Regulations are required to keep records to show that they have complied with their obligations unless workers have opted out of the 48hour weekly limit.
Note *Young workers are workers who have reached the age of 15 but not yet attained the age of 18.
The Regulations set down minimum standards. There is nothing to prevent employers and employment businesses from giving workers more than the statutory minimum requirements. It is important to distinguish between an “entitlement” under the Regulations and a mandatory “obligation”.
Examples of entitlements include:
- The right to rest breaks; and
- The right to paid annual leave.
An “employer” is not obliged to ensure that a worker exercises his right to take them. However an employer may not prevent a worker from exercising an entitlement under the Regulations. In such cases a worker can make a complaint against the employer in the Employment Tribunal. However the Health and Safety Executive has no power to require that the entitlement be taken if the worker does not wish to take it or to take any sanction against an employer in those circumstances.
Examples of mandatory obligations include:
- Limits on working time, i.e. the 48 hour week and the 8 hour night shift; and
- The requirement to keep records.
Employers are under a duty to observe and comply with the Regulations that impose mandatory obligations. If they fail to do so they will be guilty of an offence. In the first instance the Health and Safety Executive is likely to issue employers/employment businesses with advice and a warning but if this warning is ignored it will, in all likelihood, result in legal proceedings and a fine. Workers may also make complaints to the Employment Tribunals.
Who do the Working Time Regulations apply to?
The Regulations apply to all workers except for those who are specifically excluded from certain parts of the Regulations. The definition of “worker” includes those who work under a contract of employment and all other individuals who personally provide services for the ‘employer’ (except for those individuals who are genuinely in business on their own account i.e. self-employed, and who have a client or customer relationship with the ‘employer’).
This definition therefore includes PAYE temporary workers working through employment businesses as well as employees. Employment businesses are therefore “employers” for the purposes of the Working Time Regulations and are directly responsible to their temporary workers under the provisions of the Regulations.
The Regulations also include a definition of the term “agency worker” which applies when it is unclear as to whether the worker is employed by the client or the recruitment consultancy. In such circumstances the ‘employer’ will be whoever pays the worker their wages.
Which workers are excluded from the Working Time Regulations?
The following workers are excluded from all the Regulations:
- Workers covered by the “seafarers” Directive;
- Workers on board a sea-going fishing vessel;
- Workers on board a ship or hovercraft, which transfers passengers or goods on inland waterway or lake transport.
The following workers are excluded from all the Regulations except for rest breaks and rest periods for “young workers”:
- Where the activities of workers in the armed forces, police or certain civil protection services conflict with the Regulations they will not apply.
The following workers are excluded from all the Regulations except annual leave:
- Domestic servants are excluded from the restrictions on working hours and night work only. There is no exclusion from the holiday provisions. The meaning of domestic servant remains unclear but it is specifically a reference to circumstances where the worker is supplied direct to a private household and the role includes characteristics that would be consistent with the role of a domestic servant. Nannies and some care workers may fall within the definition of the term although the government is opposed to this suggestion and it is recommended that members rely on this exclusion only where the facts clearly indicate that role.
- Where working time is not pre-determined or measured because of the specific characteristics of an activity or where a worker can determine his own working time, that worker will be excluded from all the provisions of the Regulations apart from the holiday provisions. This derogation covers hours, which workers choose to work in addition to their contractual hours. For example, a worker who is contracted to work between 8:30 a.m. to 5:30 p.m. but who usually works until 7:30 p.m. voluntarily will now find that the additional two hours are now covered by the extended “unmeasured working time” derogation. In other words, these additional voluntary hours will not be taken into account when determining whether the worker in question, who is otherwise covered by the 48-hour/week limit, has worked in excess of that statutory 48-hour limit.
The Regulations provide a non-exhaustive list of such workers as guidance and suggest that managing executives, family workers and church officials are examples of independent workers who are either in control of their own working hours or unable to measure their working time with any precision. It should be noted that several employees of differing levels of seniority might carry the title “Manager”. Many middle ranking staff that carry the title “manager” will not however be in control of their working hours despite their title and will be able to measure those hours. Such “managers” will not fall within this exclusion and care should be taken to treat them as being within the 48-hour week rule.
The following workers will be excluded from daily and weekly rest periods and night work provisions if equivalent compensatory rest is given:
- Where the worker’s home and place of work are distant from each other e.g. oil rig workers, sales representatives;
- Where the work involves security or surveillance or where a permanent presence is required
- Where continuity of services is required e.g. security guards, care takers, hospital staff, doctors in training, residential institution staff, domiciliary care-workers, prison, airport or dock staff and workers concerned with the carriage of passengers on regular urban services;
- Various media and telecommunications services;
- Ambulance, fire and other civil protection services, GPs may also be included in this;
- Civil utilities such as refuse collectors;
- Workers working in industries where work cannot be interrupted on technical grounds e.g. assembly lines;
- Research and development activities;
- Activities where there is a seasonal surge of activity (e.g. agriculture, tourism, postal service) or where activities are affected by unforeseeable or unusual circumstances beyond the control of the employer or accident or imminent risk of accident;
- Workers in the railway sector who spend most of their time on board trains; whose activities are intermittent or whose activities are linked to transport timetables.
The following workers will be excluded from daily and weekly rest periods if equivalent compensatory rest is given:
- Shift workers where a shift worker cannot take daily rest between the end of one shift and the start of another; and
- Workers performing work that is split up over the day, for example cleaning staff.
Mobile workers, who are not otherwise excluded or covered by other legislation, will be excluded from night work limits, daily and weekly rest periods and rest breaks subject to them being entitled to “adequate rest”. Examples of those who fall into this section include taxi drivers and couriers.
Adequate rest is defined as regular rest periods, expressed in units of time, sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, the worker does not cause injury to himself, fellow workers, or others or does not damage health.
Mobile workers are not however entitled to adequate rest where their activities are affected by:
- Unusual/unforeseeable circumstances;
- Exceptional events;
- An accident/imminent risk of an accident.
All non-mobile workers in the road, sea and sea fishing sectors will be entitled to an average 48 hour working week, 4 weeks paid annual leave, 11 hours rest between working days, 1 day’s rest per week, a statutory in-work rest break, imposed limits on night work and, the offer of free health assessments to night workers.
Mobile workers covered by the Road Transport Directive: i.e. HGV drivers, will be entitled to 4 weeks paid annual leave and health assessments if a night worker but excluded from the other Regulations.
What constitutes “working time”?
In order to determine whether a worker’s hours will exceed 48, the starting point is to consider what constitutes “working time”. “Working time” is defined in the Regulations primarily as any period during which the worker is working at the employer’s disposal and carrying out his activities or receiving training.
In some circumstances it may be difficult to determine what circumstances fall within the definition of “working time”. Specific examples of such circumstances are time spent travelling to and from assignments and time spent in training. This issue is dealt with in more detail in the National Minimum Wage Act 1998 and Regulations 1999. Under the National Minimum Wage Regulations, training which the worker has to take part in, in order to secure a temporary assignment, and any time spent travelling between back to back assignments during the same working day, is likely to be counted as working time for national minimum wage purposes. This should provide a good indication of what will constitute working time under the Working Time Regulations.
The Regulations however allow for workers and employers to deal with “any additional period, which is to be treated as working time for the purpose of these Regulations under a relevant agreement”. In other words it is possible to enter into an agreement with a worker to clarify what constitutes working time and rest periods.
For employees the definition of working time may be more complex depending upon the requirements of the individual business. For example, recruitment consultants may be on call outside office hours and may receive and make business calls during that time. Employment businesses will need to clarify in the employees’ contracts what constitutes working time during on call time. To a great extent employers will have to rely on employees’ honesty and their submissions of details of itemised telephone calls during “on call” hours and any other proof of work done during on call hours.
In October 2000 the European Court of Justice ruled that “on-call” time would be working time when a worker is required to be at their place of work. When they are on call but none the less free to pursue their own leisure activities this will not constitute working time. However it is sensible to clarify this in the contract.
What is an average working week?
The averaging period for the 48 hours working week for most workers is 17 weeks or whatever period the worker actually works if less than 17 weeks.
For roles where there is a special case exemption, and the workers are entitled to compensatory rest, the averaging period will be 26 weeks for the purposes of calculating the working week. In most cases the average must not exceed 48 hours but again there may be applicable exceptions in the case where continuity of service by a worker is required by the nature of the work.
Where workforce/union representatives have reached a collective agreement with an employer, it is possible for averaging period to be 52 weeks. This is not likely to apply to the case of temporary workers unless they are working on long-term assignments in a workplace where the client’s permanent employees are under workforce or collective agreements and the temporary workers are expected to work to the same pattern.
Offshore workers (oil and gas explorations and production) 48 hour weekly working time limit can be averaged over 17 weeks or one to be agreed between workers and members.
The Regulations provide that this averaging period will either start either:
- From the date prescribed in a relevant agreement (such as the contract of employment or contract for services); or if not,
- Any 17-week period in the course of the worker’s employment. In other words the 17-week reference period is a rolling period.
If the worker is absent from the workplace during a particular 17-week period that time should not be counted when averaging weekly working hours. Instead a period equal to the period of absence should be added on to the end of the 17 weeks before the averaging calculation is done. For example if a worker takes 5 days’ annual leave during a particular 17-week averaging period an additional 5 days work must be added to the end of the 17-week period before the average weekly working time can be calculated.
Are workers entitled to work longer than this if they choose to opt out of the Regulations?
A worker’s average working time must not exceed 48 hours per week unless the worker agrees in writing to exceed the limit.
Members will need this agreement if either temporary workers or their own employees, are to lawfully work more than 48 hours. The agreement should include a period of notice (not less than 7 days or more than 3 months) to be given in writing by the worker if s/he decides s/he is no longer willing to exceed the limit. The agreement will also need to provide a date on which the 17-week (or other) averaging periods will start to run.
The requirement for such an agreement may seem an anomaly in the case of temporary workers engaged under contracts for services because they are generally able to determine their own working hours. However if a temporary worker works more than an average 48-hour week without such an agreement, the employment businesses in question would be in breach of its obligations under the Regulations. Gaining the agreement of clients to provide information in advance if this is likely to happen is important.
Some workers may not be willing to work more than 48 hours a week, although there may be some weeks in a 17 week period when a worker, who has not agreed to work more than 48 hours per week, does so. This will not mean that the “employer” is in breach of its obligations provided that the average number of hours worked over the 17 weeks does not exceed 48.
However the Regulations also provide that where fewer than 17 weeks are worked, the average working time is to be calculated with regard to the actual weeks worked. Thus, if an individual works, say, 55 hours per week during the first 4 weeks of his employment and the employment contract or temporary assignment is then terminated at the end of those 4 weeks, for whatever reason, the average working time over those 4 weeks will exceed 48 and the employer will be in breach of the Regulations.
In addition there will be workers to whom the 48-hour week restriction does not apply. Such workers are listed under the heading 'Workers who are excluded from all the Regulations except annual leave' in the 'Which workers are excluded from the Working Time Regulations?' section above.
Do I have to keep records of which workers have opted out?
Employers of workers who have signed an opt-out agreement agreeing to work more than the 48-hour week do not have to keep records of their working time. However a record of those who have signed an opt-out agreement must be kept and there is a requirement to record working hours for those who have not signed an opt-out agreement. These must be kept and made available for inspection by the relevant authorities (Health and Safety Executive) at any time. All records required to be kept under the Regulations, must be kept for 2 years.
What working time records do I have to keep?
Under Regulation 9 of the Working Time Regulations 1998 (WTR) an employer is required to keep sufficient records to demonstrate that other parts of the WTR are being complied with. These areas are:
- the maximum weekly working time of 48 hours, or any opt out agreements that have been made to this;
- the maximum working time for a young worker of 8 hours a day or 40 hours per week;
- the normal hours of work for any night worker that must not exceed 8 hours in any 24 hour period
- a complete restriction on young workers performing night work; and
- that workers who have been asked to do night work have had an appropriate health and safety assessment prior to beginning the night work.
The WTR sets out that these records must be kept by the employer for two years from the date on which they were first made. In the context of an employment business supplying temporary workers on a contract for services, the employment business will be the employer for the purposes of these requirements and will be obliged to take and keep these records to comply with the WTR.
However, in May 2019 the European Court of Justice (ECJ) published a ruling on a case regarding a dispute over working time records, CCOO v Deutsche Bank SAE. The judgment on this case ruled that all member states of the EU are required to have statutory provisions in force that require employers to have systems place to enable the working time worked each day by each worker to be measured and recorded in addition to the record keeping requirements set out above in order to be compliant with the EU’s Working Time Directive (WTD). The WTR was the legislation that was supposed to implement the WTD into UK law, but under the new ruling the way it does so is not sufficient and the UK law does not comply with the EU directive.
Due to the way the ECJ rulings are implemented into UK law, the judgment is binding on public bodies currently but not on private organisations. These means that courts or tribunals would be required to uphold the ECJ ruling in any cases that came before them. However, under the WTR there is no mechanism for an individual to bring a claim to a court or tribunal on this basis, and any claims regarding record keeping of working time would have to be brought by the Health and Safety Executive (HSE). As the current WTR does not require employers to keep these records, it is highly unlikely that a claim would be brought by HSE because employers will not have actually breached the current regulations.
Where this will become an issue is if the government decides to amend the WTR to better reflect the requirements of the WTD and the ruling of CCOO v Deutsche Bank SAE. Such an amendment would make this requirement binding on private organisations as well as public bodies. It is unknown if or when the government will take steps to implement such a change to the WTR, and this is made even more uncertainty when taking into account Brexit and the impact this could have on EU law in the UK. For the time being employers should be aware that this change could potentially take place at any time and need to be aware of the practical and financial implications to their businesses should they be required to implement a method for tracking all hours of work.
More information on this case can be found in the June 2019 edition of the REC Legal bitesize.
How do I calculate weekly working time?
The Working Time Regulations provide a formula for calculating average weekly working hours.
The reference period will be 17 weeks unless the area of work is one of those where the 26-week reference period can be used or there is a collective agreement in force agreeing a 52-week averaging period. The formula is:
A + B ÷ C = average weekly working time
- A is the total number of hours worked in the averaging period;
- B is the total hours worked in any additional period added on to the end of the averaging period (for example where the worker has taken annual leave during the averaging period); and
- C is the averaging period.
Example
During the 17-week averaging period Worker X works:
- 2 x 50 hour weeks (100 hours);
- 1 x 60 hour week (60 hours);
- 10 x 48 hour weeks (480 hours);
- 3 x 44 hour weeks (132 hours); and
- Has taken one week off as paid annual leave (0 hours).
The total number of hours worked over the 17 week period is therefore 772.
He then works 44 hours during the course of the week following the end of the 17-week period, which is used in the averaging calculation to make up for the period of annual leave he took (44 hours). Using the formula, X has therefore worked the regulatory 48 hours/week in the relevant reference period:
A = 772, B = 44 and C = 17: 772 + 44 = 816 ÷ 17 = 48.
I use temporary workers who work for other agencies at the same time. Do I have to take into account the time they spend working for other employers?
Multiple employment is common amongst temporary workers in the recruitment industry. The Regulations do not deal with this issue but the government has previously issued guidance that states that there is an obligation on “employers” to take a worker’s other employments into account when discharging its duties under the Regulations. In many circumstances it is accepted that this will be difficult, since the activities of workers while working elsewhere will not be known to that employer.
Special care should be taken in these circumstances to ensure that workers have signed 48 hour opt out agreements and that their hours or work do not create a health and safety hazard either to them or third parties. If the workers have not signed 48 hour opt out agreements members must take steps to make sure that they are not working in excess of this time.
When dealing with workers who are also working elsewhere you should make enquiries about any such working time. Employers are required to take reasonable steps to ensure that workers do not exceed the 48-hour limit if they have not agreed to do so. Work done elsewhere that the employer knows about should therefore be taken into account and the workers working time adjusted accordingly if no 48-hour opt-out agreement has been signed. Employment businesses should also ask whether a worker has signed a 48-hour opt-out agreement with other “employers”.
Collective, workforce and relevant agreements
A number of provisions in the Working Time Regulations may be varied by collective, workforce or relevant agreement.
A collective agreement is any agreement or arrangement made by one or more trade union and an employer relating to, amongst other things, conditions of employment. They may be national, regional or restricted to use by a particular company or industry. The provisions that can be varied in this way are:
- Rest breaks and rest break periods;
- Night work hours; and
Reference periods for averaging weekly working time and night work (provided that compensatory rest is given or appropriate protection where compensatory rest is impossible).
Workforce agreements are a new category of agreement introduced by the Regulations. Such an agreement can be used to govern the same provisions as those governed by a collective agreement. In order to be valid they must be:
- In writing;
- Effective for a specified period of not more than 5 years;
- Apply to relevant members of the workforce only;
- Signed by the workforce representatives or by the majority of the affected employees (whichever is applicable) before the commencement date; and
- All affected employees should have a copy of the signed agreement.
A relevant agreement in relation to a worker is either any provision of a collective agreement which forms part of a contract between that individual and his/her employer or a workforce agreement, or any other agreement in writing which is legally enforceable as between the worker and his employer, such as the Terms of Engagement of temporary workers or Contracts of Employment for employees. “Working time” may be clarified in a relevant agreement as may certain provisions relating to annual leave and a written agreement can be used to opt-out of the maximum 48-hour week.
Is time spent travelling from home to work (and work to home) constitute 'working time' for my workers?
Whether time spent travelling to and from work constitutes working time can depend on the nature of the work that the worker is performing.
If a worker has a role that is based at a central location and does not involve travel to other sites then the commute the worker makes to this location will not constitute working time for the purposes of the WTR. Likewise, if a worker has to report to a central office or hub and then travels from that location to other sites the initial journey from home to the core location will not count as working time. However, the subsequent journeys that the worker does from the central hub to other sites or between subsequent sites will constitute as working time for this purpose.
However, if a worker has a role that does not have a centralised location and the role requires the worker to travel directly from home to a customer site to do work then the journeys to and from this site will constitute working time under the WTR. This approach to working time was established by the European Court of Justice (ECJ) in a ruling they made on the Spanish case of Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor, which concerned the working time of technicians who installed security systems into numerous non-fixed locations and client sites.
In the scenario set out in the Tyco case, it is important to note that the time spent travelling is working time only in regards to the WTR. This means that time spent travelling in this case should be considered when measuring the length of a working time to ensure that appropriate rest breaks and rest periods are granted. The Tyco case does not have any impact on what constitutes time for which a worker must be paid for the purposes of National Minimum Wage (NMW) legislation. The NMW Act and Regulations use a different definition for what constitutes time for which a worker is entitled to be paid at least NMW and so journeys to and from home will not count for this purpose. As NMW legislation is purely domestic legislation and is not based on wider EU law it is not affected by the decision given by the ECJ in the same way as the WTR (which was based on the EU’s Working Time Directive).
Rest breaks - what are workers entitled to?
Where a worker works longer than 6 hours there should be an uninterrupted rest break of 20 minutes, preferably away from that worker’s workstation. For young workers (those who between the ages of 15 and 18) they should be given 30 minutes if working more than 4 ½ hours. Rest breaks can be determined by agreement between the parties. The minimum 20-minute break provision is therefore a default option for circumstances where no agreement as to rest breaks has been reached. In addition, there can be derogations from the rest period altogether where the work involved is not measured or predetermined provided that compensatory rest is given.
Every worker should also have a minimum daily rest period of 11 consecutive hours in every 24-hour period (12 hours for young workers). Again there may be derogations where work is not measured or predetermined or where there is an agreement between the parties provided that compensatory rest is given. In addition there must be either one break of 24 hours in every seven days or one break of 48 hours in every 14 days (48 hours every 7 days for young workers). Each week there should therefore be a break of 11 hours plus a break of a total 24 hours making a minimum uninterrupted break of 35 hours unless objective technical or work organisation conditions would justify the daily rest period being incorporated into the weekly rest period. Of course if the 48-hour weekly rest break is being used the total break, taken together with the 11-hour daily rest break, will last for 59 hours.
In the case of monotonous work the worker is entitled to adequate rest breaks. These terms are not defined and common sense therefore applies. However an example might be a data input worker who is likely, due to the monotonous nature of the task, to require shorter and more frequent breaks than other workers.
The Working Time Regulations are primarily a piece of health and safety legislation. However it should be noted that rest periods and breaks are “entitlements” only. If a worker chooses to forego his rest breaks the employer is under no mandatory obligation to ensure that he takes them unless this means the worker works over the 48 hour week without having signed an opt-out agreement with you. Despite this in the interests of health and safety there is an overriding duty on you as the employer to consider whether workers should be taking their breaks. If members consider that the number of hours a worker is working puts that worker or is likely to put that worker or other workers at risk, this fact should be raised directly with the worker and if necessary he should be required to take breaks and rest periods.
As the employer, you will be responsible for ensuring that a worker who wishes to exercise his right to rest breaks and rest periods are upheld. However when a worker is provided to a client he is under the supervision and control of that client. Members should include in their terms with their clients a provision to the effect that the client agrees to abide by the Working Time Regulations and treat temporary workers, for the purposes of the Regulations, as if those workers were its own employees.
It is important that the client understands that it can no more require Member’s temporary workers to work outside the scope of the Regulations than it can its own employees. You should monitor the client’s treatment of workers as closely as possible. It should be noted that such a contractual provision in your terms of business with your clients would not discharge your statutory obligations under the Regulations.
Rest breaks - are lunch breaks counted as “working time” and do they have to be paid for?
Whether rest breaks, both daily and weekly, constitute working time should be clarified in the contract of employment or terms of engagement. This point is dealt with in clause 4.2 of the REC model contract of employment. The REC model terms of engagement for temporary workers deal with this point at clause 7.4.
There is no legal entitlement to be paid for rest breaks or rest periods and clause 4.2 of the REC Model Terms of Engagement states that workers will only be paid for time spent on assignment working. If members wish to clarify this point further they may amend clause 4.2 to specifically include rest breaks as follows:
“Subject to any statutory entitlement under the relevant legislation, the Temporary worker is not entitled to receive payment from the Employment Business or Clients for time not spend on Assignment, whether in respect of rest breaks, holidays, illness or absence for any other reason unless otherwise agreed.”
Night work - are there any restrictions on adult workers doing night work?
Regulation 6 (Working Time Regulations) provides that adult night workers (aged 18 and over) must not work more than an average 8 hours night work in each 24-hour period. The averaging period is 17 weeks (or longer within the industries mentioned above or where there is agreement between the parties) and should ideally run in parallel with the 48-hour weekly averaging periods. In other words there may be some nights during a 17-week period where someone works more than 8 hours so long as the average over 17 weeks does not exceed 8 hours/night.
However where night work involves special hazards or heavy physical or mental strain the averaging provisions do not apply and night work can never exceed 8 hours in every 24. What constitutes heavy mental and physical strain is not defined but the Regulations provide that employers may identify what constitutes such strains or hazards in a collective or workforce agreement or can identify them through risk assessments. Before temporary workers are put on night assignments, members should require information about the work.
Health and safety protection is already in place under the Health and Safety at Work Act 1974 and The Management of Health and Safety (Protection of Employment) Regulations 1992.
Unlike the 48-hour week provisions there is no scope in the Regulations for workers to agree to opt out of the 8-hour night work provisions.
Night work - what is classified as “night work”?
The Working Time Regulations provide that night work is work performed during ‘night time’. “Night time” in the Regulations is defined as a minimum period of at least 7 hours, which includes the period between the hours of midnight and 5 am. ‘Night time’ is either determined by agreement between workers and employers or, if no agreement exists, it will be the period between 11pm. and 6 am.
Night work - I have a temporary worker who normally works day shifts but who wants to work a couple of extra 12 hour night shifts. Is he allowed to work more than the 8 hours?
A night worker is an individual who performs at least 3 hours of his daily working time during the night work hours in the normal course of his working pattern. In other words, provided 3 hours of a worker’s 8-hour shift fall during night time that worker will be a night worker and subject to the 8-hour rule and the need for health assessments. However if he does not regularly work at night then assuming these extra shifts do not represent a normal pattern of working he will not be limited to working 8 hours.
Night work - does it make a difference if the worker is aged under 18?
Young workers (those workers who have reached 15 but not yet attained the age of 18) may not ordinarily work at night between 10pm and 6am, or 11pm and 7am if their contract provides for work after 10pm except if they are employed in:
- Hospitals or similar establishments; or
- In any of the following activities:
- Cultural
- Artistic
- Sporting
- Advertising
Young workers may work between 10 or 11pm until midnight and between 4am to 6 or 7am if:
They are employed in the following types of establishment:
- Agriculture
- Retail trading
- Postal or newspaper deliveries
- A catering business
- A hotel, public house, restaurant, bar or similar establishment
- A bakery.
- It is necessary to either maintain continuity of service or production;
- or to respond to a surge in demand for service or product;
- There is no adult available to perform the task;
- The training needs of the young worker are not adversely affected; and
- The young worker is allowed an equivalent period of compensatory rest.
Young workers must be adequately supervised where that is necessary for their protection.
There is also a requirement to carry out a more onerous health assessment or capacities checks on young workers doing night work including consideration of whether the worker has the physical and psychological ability to do the work. Again what constitutes a capacities check will be subject to the common sense approach.
Night work - how do I calculate the average hours of night work?
As already stated, the Regulations allow for agreement on what hours constitute night work, provided that they include the hours midnight to 5 am. For example a barman in a nightclub, who habitually works between the hours of 6 p.m. to 2 am, performs 3 hours of his work during the default night time period (11 p.m. to 6 am) provided for in the Regulations. Traditionally however, bar work is not regarded as night work. The solution in this scenario would be for the employer to agree with the barman that the night time hours for the purposes of night work were between 12 p.m. and 7 am. That way the barman will only perform 2 hours of his work during night time and will not fall within the definition of a night worker.
In addition there may be workers, such as nurses, who generally perform 12-hour shifts at night. Provided that the work involved is not subject to the absolute 8 hour cap on account of its hazardous or strenuous nature, the nurse should still be able to perform 12 hour night shifts so long as the average night work over 17 weeks (or the relevant averaging period) does not exceed 8. Generally this will be the case with nurses because they tend to perform a series of night shifts followed by a series of day shifts with compensatory rest breaks.
The Regulations provide a formula for calculating the average number of night work hours:
A ÷ B - C = average number of night work hours
- A is the number of hours during the reference period which are normal for the worker (maximum 17 x 48 = 816 or 6 x 8 hour night work shifts per week);
- B is the number of 24 hour periods in the reference period (there are a maximum of 119 24-hour periods in a 17 week period: 7 x 17 = 119); and
- C is the number of 24-hour rest periods required under the Regulations during the reference period (i.e. 17).
816 ÷ (119 - 17) = 8
For example:
Worker X works a 12-hour night shift 6 days a week every other week (12 x 6 x 8.5 = 612).
612 ÷ (119 - 17) = 6
Worker X has therefore worked an average of 6 hours/night over the 17-week reference period.
Night work - what exactly do I have to do in terms of a health assessment for night workers?
Where you wish to place a worker in a night work assignment but their health assessment indicates there are health risks, you can take the view that the worker in question is not suitable for night work and assign him to day time work only. The Regulation in question is aimed at situations where employers might require employees to perform night work where they are not fit to do it. The Regulation prevents a requirement being imposed on a worker until the necessary checks and assessments had been carried out. If, after the employee failed to complete a satisfactory health assessment questionnaire, and the employer still wished that employee to carry out a night work shift, the employer would need to pay for that employee to be examined by a medical practitioner. Such examination would need to be carried out at the employer’s expense. In the case of temporary workers and employment businesses however, it is not necessarily incumbent on the employment business to pay for medical examinations if the employment business is prepared to put the worker forward for day work only. In most cases, where a temporary worker fills out a health questionnaire unsatisfactorily, the employment business will not wish to put them forward for night work and no further medical examination will be required.
REC suggests the following course of action in relation to temporary workers carrying out night work although the same principles will apply to any workers who normally carry out night work:
- Devise a health questionnaire (with the help of a medical practitioner or in accordance with the questionnaires used by your clients, or the HSE), which is aimed at assessing a worker’s suitability for night work. Ideally, this questionnaire should be completed by all workers who are likely to perform night work upon registration so that there is immediate and easy reference to the suitability of a particular worker for night work as client demands arise;
- Provided workers’ answers to the questionnaire are positive they will pass the health assessment and can be put forward for night work without the need for a further medical examination. If, however, they give unsatisfactory responses and Members wish to consider them further for night work they will need to have those workers examined by a medical practitioner at the Members’ own expense - it is important that workers incur no expense, including the loss of wages, when attending a health assessment. If Members do not wish to consider a worker for night work on account of a poor health assessment, then they will need to make it clear that they will be searching for suitable day work for them wherever possible.
- In the case of young workers (workers who have reached 15 but not yet attained the age of 18) members will need to carry out capacities checks. A capacities check should involve verifying the particular skills, knowledge and experience needed for the task in hand and determining the suitability of the young worker in terms of his age, experience, skills and qualifications in the light of those requirements.
- Implement a system for updating health assessment questionnaires, say annually or more frequently if necessary (or every six months for workers over 40) for workers who carry out night work assignments on a regular and ongoing basis.
- REC recognises that it is sometimes difficult for members to maintain control over the movements of temporary workers while on assignment and that a worker may agree with the client to change from a day work assignment to a night work assignment without informing the employment business that he is doing so. In order to avoid this happening members should ensure that their clients understand the obligations arising out of the Regulations and the necessity to be informed should there be any change in the temporary worker’s working pattern. In addition it is important in relation to a night work assignment that employment businesses make enquiries of their clients as to the nature of a night work assignment in order to know whether it is one that must be restricted to the 8 hour maximum on account of its hazardous or strenuous nature. A system should be put in place to enable consultants to easily decide whether a night work assignment involves such hazards or strains. Members will then need to inform the client in writing of their findings so that the 8-hour cap on that particular assignment is clear.
- In the case of young workers Members will need to make specific enquiries of their clients so that they are informed of the knowledge, skills and experience required for a specific assignment and can properly carry out the capacities check.
Night work - when are workers entitled to health assessments?
Regulation 7 provides that night workers have a right to regular, free health assessments before being assigned to night work and at regular intervals thereafter. The health assessment must be carried out at no cost to the worker and comply with medical confidentiality (although employers and health assessors are allowed to make statements as to a worker’s fitness for night work).
There is also a right to:
- Transfer to day work where it is available and night-work related health problems arise; and
- Appropriate health and safety protection.