Your guide to the Working Time Regulations: sections 5 - 11
URN No: 08/837/B
Section 5: Time off
Section 6: Rest breaks at work
Section 7: Paid annual leave
Section 8: More about the application of the regulations
Section 9: Sample health questionnaire
Section 10: Frequently asked questions
Section 11: Useful names, numbers and addresses
For Sections 1-4 see:
Your guide to the Working Time Regulations: sections 1 - 4
SECTION 5 : TIME OFF
Employers must check:
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Daily rest
A worker is entitled to a rest period of 11 uninterrupted hours between each working day.
Weekly rest
A worker is entitled to one whole day off a week.
Days off can be averaged over a two-week period, meaning workers can take two days off a fortnight. Days off are taken in addition to paid annual leave.
Employers must make sure that workers can take their rest.
For information on when the limits may not apply see Section 8.
Mobile workers are excluded from the usual rest break entitlements under the Working Time Regulations. Instead, these workers are entitled to 'adequate rest'.
'Adequate rest' means that workers have regular rest periods. These should be sufficiently long and continuous to ensure that fatigue or other irregular working patterns do not cause workers to injure themselves, fellow workers or others, and that they do not damage their health, either in the short term or in the longer term.
Special rules for Young Workers
Daily rest
A young worker is entitled to 12 uninterrupted hours in each 24-hour period in which they work. The rest may be interrupted if periods of work are split up over the day or do not last long.
A young worker’s entitlement to daily rest can be reduced or excluded in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within 3 weeks.
Weekly rest
Young workers are entitled to two days off each week. This cannot be averaged over a two-week period, and should normally be two consecutive days.
If the nature of the job makes it unavoidable, a young worker’s weekly time off can be reduced to 36 hours, subject to them receiving compensatory rest (see What is compensatory rest? in Section 8)
See Section 8 for:
What to do if you are not receiving your rights as a worker
What records do employers need to keep?
SECTION 6: REST BREAKS AT WORK
Employers must check:
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If a worker is required to work for more than six hours at a stretch, he or she is entitled to a rest break of 20 minutes.
The break should be taken during the six-hour period and not at the beginning or end of it. The exact time the breaks are taken is up to the employer to decide.
Employers must make sure that workers can take their rest.
Mobile workers are excluded from the usual rest break entitlements under the Working Time Regulations. Instead, these workers are entitled to 'adequate rest'.
'Adequate rest' means that workers have regular rest periods. These should be sufficiently long and continuous to ensure that fatigue or other irregular working patterns do not cause workers to injure themselves, fellow workers or others, and that they do not damage their health, either in the short term or in the longer term.
For information on when the limits may not apply see Section 8.
Special rules for Young Workers
Different rules apply to young workers. If a young worker is required to work for more than four and a half hours at a stretch, he or she is entitled to a rest break of 30 minutes.
If a young worker is working for more than one employer, the time he or she is working for each one should be added together to see if they are entitled to a rest break.
A young worker’s entitlement to breaks can be reduced or excluded in exceptional circumstances only. Where this occurs, the young worker should receive compensatory rest within 3 weeks.
See Section 8 for:
What to do if you are not receiving your rights as a worker
What records do employers need to keep?
SECTION 7: PAID ANNUAL LEAVE
Every worker – whether part-time or full-time – covered by these regulations is entitled to 4.8 weeks (24 days if you work a five day week) pro-rata for those working part-time. This will increase to 5.6 weeks (28 days if you work a five day week) from 1 April 2009. This includes workers who are subject to the Road Transport Directive.
A week’s leave should allow workers to be away from work for a week. It should be the same amount of time as the working week: if a worker does a 5-day week, he or she is entitled to 24 days’ leave; if he or she does a 3-day week, the entitlement is 14.4 days’ leave.
The leave entitlement under the regulations is not additional to bank holidays. There is no statutory right to take bank holidays off. Therefore a worker who is not otherwise paid in respect of bank holidays may take bank holidays as part of his or her annual leave entitlement in order to receive payment for these holidays. For more information on Bank Holidays go to:
Bank and public holidays in England, Wales and Northern Ireland for the years 2007-2010
Workers must give the employer notice that they want to take leave.
Employers can set the times that workers take their leave, for example for a Christmas shutdown.
If a worker’s employment ends, he or she has a right to be paid for the leave time due and not taken.
Employers must check:
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Rolled-up Holiday Pay
Following a European Court of Justice (ECJ) judgment on 16 March 2006 and more recent judgments in UK courts, (1) Rolled-Up Holiday Pay (RHP) is considered unlawful and payment for statutory annual leave should be made at the time when leave is taken.
More detailed information
Workers are entitled to 4.8 weeks paid leave each year, increasing to 5.6 weeks from 1 April 2009.
This entitlement is not in addition to any annual leave given to a worker under an employment contract. One is set off against the other, so that the amount of leave a worker gets is whichever of the two kinds of leave is longer.
Who is entitled to paid annual leave?
The entitlement to paid annual leave, including the right to compensation payments for untaken leave when you leave your job, begins on the first day of employment.
However, the employer can optionally use an accrual system whereby during the first year of employment the proportion of the leave which may actually be taken (with the employer's agreement) builds up over the year. The amount of leave which may be taken builds up monthly in advance at the rate of one-twelfth of the annual entitlement each month.
For example:
- A full-time worker who is in his or her third month of employment would have built up 5 days' leave. (The current annual entitlement of 20 days multiplied by 3/12 equals 5 days).
- A part-timer who works three days a week and is still in his or her first month of employment would be able to take one day's leave. The annual entitlement of 12 days (four weeks times three days a week) multiplied by 1/12 equals one day.
Requests to take leave in the first year are subject to the same notice requirements as any other leave: see section below Giving notice to take leave.
At the end of a period of employment a worker will be able to claim for payment in lieu for any leave outstanding, calculated on a pro rata basis from the first day of the leave year or employment to the last day of employment, irrespective of how long that period may be in the current leave year.
An easy to use ready reckoner table is also available for the more straightforward scenarios at:
http://www.berr.gov.uk/employment/holidays/page40455.html A number of Frequently Asked Questions are covered at:
http://www.berr.gov.uk/employment/holidays/index.html
How ‘leave years’ work
If you are a worker, you will be entitled to take paid leave, which will be based on your ‘leave year’; this will start at a date you agree with your employer. If you do not have an agreement, the leave year will start:
- On 1 October if you started work on or before 1 October 1998. Every leave year will then start on that date.
- On the date you started your job if you started work after 1 October 1998. Again, each leave year will then start on that date.
If you start work part of the way through an existing company leave year, your leave entitlement will be proportionate to the amount of time left during that year.
And if you leave your job part of the way through a leave year, your annual leave entitlement will be proportionate to the amount of the leave year that you have worked.
How to work out holiday pay due to workers who are leaving
The pay due can be worked out using the formula:
(A x B) – C
where:
A is the period of leave the worker is entitled to.
B is how much of the worker’s leave year has elapsed before they left their job.
C is the amount of leave taken by the worker between the start of the leave year and the date they are leaving.
What is a week’s leave?
A week’s leave should allow you to be away from work for a week. So it is the same as the length of time you work in a normal week.
Giving notice to take leave
Employers and workers can agree how and when to give notice of when leave is to be taken.
In the absence of an agreement the notice period that a worker must give should be at least twice the period of the leave to be taken. An employer may refuse the worker permission to take leave requested within a period equivalent to the period of the leave. For example, if a worker wants to take a day’s leave, he or she would have to give their employer at least two days’ notice. If a worker has given the employer two days’ notice that they want to take one day’s leave, the employer can come back within one day to refuse the leave. This provides employers with flexibility where, for example, a number of other workers have also applied to take the same day off.
Calculating a week's pay
The following section explains how the amount a worker should be paid for their leave entitlement is calculated under the regulations.
For workers paid a fixed wage or salary (fixed hours and pay)
If you are a worker whose normal working hours do not vary, a week’s pay is the pay due for the basic hours you are contracted to work. Pay for overtime hours is not included unless it is guaranteed overtime, i.e. required by the contract between you and your employer.
For piece workers or workers on commission (hours constant and pay varies)
If you are a worker whose pay varies with the amount of work done (such as with piece work) or when a week’s pay is partly made up of variable bonuses or commission directly related to that week’s output, then a week’s pay is your average hourly rate multiplied by your normal working hours.
To calculate your hourly rate: divide your weekly pay over the previous 12 weeks by the number of hours you worked during the same period (the pay and hours of non-compulsory overtime is excluded). Any week in which you receive no pay is replaced by the week before the 12 weeks when you were paid, to bring the total to 12.
If you are on commission or performance-related bonuses, 12/13 of any quarterly bonus or 12/52 of any annual bonus is included. Only bonuses specifically related to a week’s work should be included; general ‘profit-sharing’ or other such bonuses are not included.
A week’s pay is the total eligible pay (excluding voluntary overtime but including relevant bonuses) over the 12-week period divided by 12.
For shift workers (hours and pay vary in a set pattern)
If you are a shift worker and you work a set pattern but the hours you work and the money you earn each week vary, you can work out your week’s pay by finding the average number of hours you work each week and your average hourly rate.
To work out the average number of hours you work each week, add up all the hours you have worked over the past 12 weeks and divide them by 12. If you are a piece worker, you can work out your average hourly rate in the same way; i.e. add up how much you have earned over the past 12 weeks and divide it by the number of hours you have worked. You should not include voluntary overtime in either of these calculations, but you include shift premia.
For workers who work irregular hours (hours and pay vary)
If you do not work regular hours - you may be an agency worker who works different hours every week or a sales representative who gets paid commission only – you should average your pay out by adding up all your pay for the past 12 weeks and dividing it by 12. If you did not earn anything during one week, add in the pay from the week before the 12th week to bring the total up to 12.
See Section 8 for:
What to do if you are not receiving your rights as a worker
What records do employers need to keep?
SECTION 8: MORE ABOUT THE APPLICATION OF THE REGULATIONS
This section contains more information on:
- Exceptions to the rules
- Keeping records
- Enforcement
More about exceptions to the rules
There are four classes of exceptions where some of the rules may not apply.
1 Agreements
In general, employers and workers can agree that the night work limits, rights to rest periods and rest breaks may be varied, with the workers receiving "compensatory rest" (see below). They may also agree to extend the reference period for the working time limits up to 52 weeks.
These agreements can be made by ‘collective agreement’ (between the employer and an independent trade union) or a ‘workforce agreement’. If a worker has any part of their conditions determined by a collective agreement they can not be subject to a workforce agreement.
A workforce agreement is made with elected representatives of the workforce in most cases (see below). A workforce agreement can apply to the whole workforce or to a group of workers. To be valid, a workforce agreement must:
- be in writing;
- have been circulated in draft to all workers to whom it applies together with the guidance to assist their understanding of it;
- be signed before it comes into effect either; - by all the representatives of the members of the workforce or group of workers; or
- if there are 20 workers or fewer employed by a company, either by all representatives of a workforce or by a majority of the workforce;
- have effect for no more than five years.
2 Special circumstances
The night work limits (including the limit for special hazards), rights to rest periods and rest breaks do not apply where:
- A worker works far away from where he or she lives (this includes offshore work). Or he or she constantly has to work in different places making it difficult to work to a set pattern.
- The work involves security or surveillance to protect property or individuals.
- The job requires round-the-clock staffing as in hospitals, residential institutions, prisons, media production companies, public utilities, and in the case of workers concerned with the carriage of passengers on regular urban transport services or in industries where work cannot be interrupted on technical grounds.
- There are busy peak periods, such as may apply seasonally in agriculture, retail, tourism and postal services.
- An emergency occurs or something unusual and unforeseen happens.
- Where the worker works in rail transport and his activities are intermittent; he spends his time working on board trains; or his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.
In these cases, (except for the offshore sector) the reference period for the weekly working time limit is extended from 17 to 26 weeks. In addition workers are entitled to "compensatory rest".
What is compensatory rest?
"Compensatory rest" is normally a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed.
The regulations give all workers a right to 90 hours of rest in a week. This is the total of your entitlement to daily and weekly rest periods. The exceptions allow you to take rest in a different pattern to that set out in the regulations.
The principle is that everyone gets his or her entitlement of 90 hours rest a week on average, although some rest may come slightly later than normal
The European Court of Justice has ruled that compensatory rest should be provided immediately after the end of the working period (1).
(1) Landeshauptstadt Kiel v Norbert Jaeger 2003
3 Unmeasured working time
The working time limits and rest entitlements, apart from those applicable to young workers, do not apply if a worker can generally decide how long he or she works because of the particular nature of their job.
A test, set out in the regulations, states that a worker falls into this category if “on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined, or can be determined by the worker himself”.
An employer needs to consider whether a worker passes this test. Workers such as senior managers, who can decide when to do their work and how long they work, are likely to pass the test. Those without this freedom to choose are not.
It is accepted that workers who fall into this category may have an element of their working time measured or pre-determined, but otherwise decide how long they actually work. It is likely that very few workers, including some of those that fall into this category, have complete control over their entire working time.
This exception would not apply to:
Hourly paid workers and those claiming paid overtime;
Those working under close supervision;
A worker who is implicitly required to work, for example because of specific output requirements to be achieved in a specified period.
No one can be forced to work more than an average of 48 hours a week against his or her will; this exception does not remove this protection from any worker. The exception applies to individuals (apart from young workers) where the specific characteristics (i.e. the nature) of their work meet the test set out above.
More about keeping records
What records do employers need to keep?
If you are an employer, you need to keep records that show:
- The weekly working time and night work limits are complied with in your business. It is for you to determine what records need to be kept for this purpose. You may be able to use existing records maintained for other purposes, such as pay, or you may need to make new arrangements.
- You do not have to keep a running total of how much time workers work on average each week. How you monitor your workers' hours depends on particular contracts and work patterns.
- You need only make occasional checks of workers who do standard hours and who are unlikely to reach the average 48-hour limit. However, you should monitor the hours of workers who appear to be close to the working time limit – and make sure they do not work too many hours.
- You need to keep an up-to-date record of workers who have agreed to work more than 48 hours a week, but you do not need to record how many hours they actually work.
- You must offer regular health assessments to night workers. You should keep a record of: the name of the night worker, when an assessment was offered (or when he or she had the assessment if there was one) and the result of any assessment. Records must be kept for 2 years.
More about enforcement
How are the regulations enforced?
Enforcement is split between different authorities. The limits and health assessment requirements (for night workers), are enforced by the Health and Safety Executive (HSE), local authority environmental health departments, the Civil Aviation Authority (CAA), the Vehicle and Operator Services Agency (VOSA) and the Office of Rail Regulation (ORR). The entitlements to rest and leave are enforced through employment tribunals.
Enforcement of employers' obligations
The HSE enforce the limits and obligations to provide health assessments in factories, building sites, mines, farms, fairgrounds, quarries, chemical plants, nuclear installations, offshore installations, schools, hospitals and in relation to mobile workers in road transport other than those referred to below i.e. employed taxi drivers and couriers. Enforcement will be in line with the Health and Safety Commission's (HSC) Enforcement Policy Statement.
Local authority officers ensure the regulations are followed in shops and retailing, offices, hotels and catering, sports, leisure and consumer services.
ORR enforce the limits and obligations to provide health assessments for night workers in relation to rail workers.
CAA enforce the limits and obligations to provide a health assessment for night workers, in relation to a mobile worker who works in general aviation, including the general aviation corporate sector.
VOSA enforce the working time limits and health assessments if a night worker in relation to a mobile worker covered by:
- the United Kingdom domestic driver's hours code, which is set out in Part VI of the Transport Act 1968
VOSA also enforce the health assessments if a night worker, in relation to a mobile worker to whom one or more of the following applies:
- Council Regulation (EEC) 3820/85 or
- the European Agreement concerning the Work Crews of Vehicles engaged in International Road Transport (AETR) of 1st July 1970
Entitlements
If you are a worker and you feel you are not receiving your entitlements, we suggest you take the following steps:
- Talk to your manager, you may be able to settle the matter straight away.
- Contact a trade union representative (if you have one). They will be able to advise you what to do.
- If you cannot resolve the matter, you can make a claim at an employment tribunal.
If you want to make a claim under the regulations, the Advisory, Conciliation and Arbitration Service (Acas) will offer the services of a conciliator to help the employer and worker to reach a settlement without the need for a tribunal hearing. Part of the conciliator’s role is to explain how tribunals work and how a tribunal arrives at decisions. This service is free of charge.
If you want to take a complaint to a tribunal, you should do so within three months. The tribunals offer an informal way of ensuring that workers are given their rights. These tribunals generally have three members: a legally qualified chairperson and two other lay members who have experience of dealing with work-related problems.
3) It should be noted that under National Minimum Wage (NMW) legislation, employers are required to keep records sufficient to show that the NMW has been paid. Therefore, it is unlikely that a worker earning close to the NMW would fall within the exception as their working time should be measured.
SECTION 9: SAMPLE HEALTH QUESTIONNAIRE
This health questionnaire is provided for sample purposes only. Make sure you ask a qualified health professional to help you devise this form.
ARE YOU FIT TO WORK NIGHTS?
The purpose of this questionnaire is to ensure that you are suited to working at night. All the information you provide will be kept confidential.
TYPE OF WORK/ DURATION OF NIGHT WORK..................
1. Surname
2. First and second name/s
3. Sex M/F
4. Date of birth
5. Permanent address
6. Job title
7. National insurance no.
8. Department /clock no.
| Do you suffer from any of the following health conditions? | Y/N |
| Diabetes | |
| Heart or circulatory disorders | |
| Stomach or intestinal disorders | |
| Any condition which causes difficulties sleeping | |
| Chronic chest disorders, especially if night-time symptoms are troublesome | |
| Any medical condition requiring medication to a strict timetable | |
| Any other health factors that might affect fitness at work |
If you have answered ‘yes’ to the above question, you may be asked to see a doctor or nurse for further assessment.
I, the undersigned, confirm that the above is correct to the best of my knowledge.
Signed.......................................................Date………….
ASSESSMENT
[this gives an indication of whether the worker is fit to work nights or should see a doctor or nurse for a medical examination]
Signed.......................................................Date………….
SECTION 10: FREQUENTLY ASKED QUESTIONS
Can my employer make me sign an opt-out agreement?
No. Any opt-out must be agreed to. You cannot be fairly dismissed or subject to a detriment if you refuse to sign it.
What should an employer do about a worker with a second job?
If a worker is known to have a second job, an employer should ask the worker to consider signing an opt-out agreement if the total time worked is in excess of 48 hours a week. If a worker does not wish to sign an opt-out in this situation, the worker should consider reducing their hours to comply with the 48-hour limit.
More generally, employers may wish to make an enquiry of their workforce about any additional employment. However, if a worker does not tell an employer about other employment and the employer has no reason to suspect that the worker has another job, it is extremely unlikely that the employer would be found not to have complied.
As a worker, do I have to have a health assessment?
No. But your employer must still offer you one before you become a night worker and thereafter on a regular basis.
Are workers paid for rest breaks?
This is up to the employer and the worker to agree between them. In many cases this will be determined by the existing contract.
Are bank holidays additional to my annual leave?
No. If you take a bank holiday as a paid leave, it will count as one day of your annual leave under the regulations. There is no statutory right to take bank holidays off or receive payment for them, though you may have a right to do so under your contract of employment.
Can I take my leave when I want?
You do not have the right to take leave any time you choose. Your employer must agree your leave times, although he or she must also agree to give you leave at some point during the year.
I have a member of staff who has not taken her paid annual leave, but is going on maternity leave soon. How will annual leave and maternity leave interact?
Annual leave cannot be taken at the same time as maternity leave. Before an employee goes on maternity leave she may wish to consider taking any outstanding leave for the relevant leave year and perhaps delay the start of her maternity leave. Alternatively, it may, depending upon the length of the maternity leave, be possible for her to take annual leave in the period between the expiration of the maternity leave and the expiration of the leave year. For example, a pregnant employee may start her maternity leave slightly earlier (but not sooner than 11 weeks before the expected week confinement) and then take her annual leave immediately after her period of maternity leave.
I run a small business; if I want to close my business for a certain length of time, do I have to pay holiday pay to my workers whilst my business is closed?
Employers have the right to set the times that their workers take their annual leave, for example, during a Christmas shutdown. Holiday pay would have to be paid to their workers, providing they had not exhausted their leave entitlement for the current leave year.
I am a HGV driver. What provisions of the Working Time Regulations will apply to me?
You would be entitled to paid annual leave and health assessments if a night worker. Specific provisions on rest entitlements and working time limits for HGV drivers will come into effect when the Road Transport Directive is implemented in March 2005.
I am about to take paid paternity leave. Can I receive my paid annual leave at the same time?
No. You cannot receive paternity leave payment and paid annual leave for the same period of time.
I employ a 16-year old apprentice who works alongside me. I work a 9-hour day. Can my apprentice work the same hours as me?
Young workers (i.e. 16 and 17 year olds) can only work a maximum 8-hour day. However, any breaks that a young worker receives are not classed as working time.
SECTION 11: USEFUL NAMES, NUMBERS AND ADDRESSES
For help with matters about time off, rest breaks, paid annual leave and other general employment information, call the Advisory, Conciliation and Arbitration Service (Acas) National helpline on 08457 47 47 47 or refer to the Acas website (see link on right hand side).
If you need information about making a claim or going to a tribunal, please call the Employment Tribunals Service enquiry line on 08457 959 775 or refer to the Employment Tribunals Service website (see link on right hand side).
If you want to find out more about tribunals, read the Understanding Employment Tribunals series of booklets which are available from local Jobcentre Plus offices or Citizens Advice Bureaux.
For help with matters to do with the weekly and night working time limits and health assessments, you should:
call the Health and Safety Executive (HSE) Infoline on 0845 345 0055 or contact the Environmental Health Department of your Local Authority, or:
Email or write to:
HSE Infoline
Caerphilly Business Park
Caerphilly
CF83 3GG
or refer to the HSE website (see link onright hand side)
For help with matters to do with the working time limits and health assessments for mobile workers in General Aviation, including General Aviation Corporate sector, email: WorkingTimeEnquiries@caa.co.uk
or write to:
Working Time Advisor
Civil Aviation Authority
Aviation House
Gatwick Airport South
West Sussex
RH6 0YR
For help with matters to do with the working time limits and health assessments of certain mobile workers (see Section 8) in the Road Transport sector, VOSA can be contacted on: 0870 6060 440.
For help with matters to do with the working time limits and health assessments for railway employees e-mail: christopher.goodlad@orr.gsi.gov.uk or write to:
Mr Chris Goodlad
Working Time Advisor
HM Inspector of Railways
HMRI
2nd Floor
Grove House
Skerton Road
Manchester
M16 0RB
ACTS FOR OTHER WORKING TIME LEGISLATION
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Air transport workers covered by the Aviation Directive
The Aviation Directive covers mobile personnel in civil aviation, excluding Corporate and General Aviation, and will be implemented in the UK by the Department for Transport. Information on the Directive can be obtained from:
Aviation Directorate
Department for Transport
Zone 1/27, Great Minster House
76 Marsham Street
London
SW1P 4DR
Tel: 020 7944 5881
Road transport workers covered by the Road Transport Directive
The Road Transport Directive covers certain mobile workers in road transport and will be implemented in the UK by the Department for Transport. Information on the Directive can be obtained from:
Department for Transport
Road Freight Operations Division
Zone 2/23, Great Minster House
76 Marsham Street
London
SW1P 4DR
or refer to the Department for Transport website (see link on right hand side).
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Sea transport workers covered by the Seafarers’ Directive
The Seafarers’ Directive covers seafarers on sea-going ships and has been implemented in the UK through the Merchant Shipping (Hours of Work) Regulations 2002. Information on the Regulations can be obtained from:
Maritime and Coastguard Agency (MCA)
Tel: 023 8032 9100
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Mobile workers in inland waterway and lake transport
Working time legislation for mobile workers in inland waterways and lake transport will be implemented by the Department for Transport through the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003. Information on the legislation can be obtained from:
Maritime and Coastguard Agency (MCA)
Tel: 023 8032 9209
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Sea fishing
Working time legislation for sea fishermen will be implemented by an amendment to the Merchant Shipping Act. Information on the legislation can be obtained from:
Maritime and Coastguard Agency (MCA)
Tel: 023 8032 9100
(1) Robinson-Steele v PD Retail Services, Clarke v Frank Staddon Ltd, Caulfield & Others v Hanson Clay Products Ltd (formerly Marshalls Clay Products Ltd), 16 March 2006