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TENDRING DISTRICT COUNCIL
WORKING TIME REGULATIONS
GUIDANCE DOCUMENT
Under the Working Time Directive (WTD) there are minimum conditions in relation to issues such as weekly working time, rest entitlements and annual leave.
This booklet simplifies and summarises the obligations that we as a public body have to comply with.
Working Time Regulations (WTR) apply to Great Britain only, which means England, Scotland and Wales.
The Working Time Regulations impose an obligation on employers to take all reasonable steps to ensure that workers do not work more than an average of 48 hours a week over a 17-week period.
The Working Time Regulations limit the maximum amount of working time and regulate the way working time is organised.
In summary, the Working Time Regulations provide for:
Worker is defined by the Working Time Regulations as:
An individual who has entered into or works under (or, where the employment has ceased, worked under) –
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose statues is not by virtue of the contract of a client or customer of any profession or business undertaking carried on by the individual. (Regulation 2 (1))
Working Time is defined by the Working Time Regulations as:
(a) any period during which the worker is working at his employer’s disposal and carrying out his activities or duties; or
(b) any period during which the worker is receiving relevant training; or
(c) any additional period which is to be treated as working time for the purpose of Working Time Regulations under a relevant agreement.
Employees might have more than one job. In this case the employer is required under the Working Time Regulations to take all reasonable steps to ensure that workers do not exceed an average of 48 hours of weekly working time. The cap is set on total working time, not on time worked in one job.
Managers must take responsibility for enquiring whether the worker is working elsewhere.
Employers may consider incorporating into a contract or offer letter the requirement that a worker declares any other existing position held (and the number of hours worked) or inform the employer before taking up another position. This will be incorporated in the Staff Handbook.
If a worker has another job and works more than 48 hours on average a week; the manager should agree with the worker that he is willing to do so by entering an opt-out agreement. (For further information on opt-out agreement refer to in Human Resources).
The limit on working time is an average calculated over a rolling 17-week period.
On this basis a worker may work more than 48 hours in one particular week but still comply with the average limit set. Any hours worked over and above 37 hours per week are subject to overtime rates, however some departments have local arrangements in place that have agreed all overtime payments at basic rate. There is no entitlement to overtime from spinal column point 29. Flexi time often reduces the requirement to pay overtime. Overtime must be agreed in advance with the relevant Head of Department and accommodated out of existing department salary budgets.
In summary, a reference period is:
Night workers are specifically provided for under the Working Time Regulations. An employer is required to take all reasonable steps to ensure that the ‘normal’ hours of their night workers do not exceed an average of eight hours for each 24 hours over a 17-week reference period.
Night time is defined by the Working Time Regulations as a period of at least seven hours, which includes the period from midnight to 5am. Unless the period has been determined by a relevant agreement, it will be the period between 11pm and 6am.
Night worker is defined as a worker:
(a) who, as a normal course, works at least three hours of his daily working time during night time, or
(b) who is likely, during night time, to work at least such proportion of his annual working time as may be specified for the purposes of these Regulations in a collective agreement or a workforce agreement;
and, for the purpose of paragraph (a) of this definition, a person works hours as a normal course (without prejudice to the generality of that expression) if he works such hours on the majority of days on which he works.
Clearly defining night time allows employers and workers greater flexibility to agree who should be a night worker. For example a night club worker who works 7pm to 1am will be a night worker if night time is defined as 10pm to 5am, but will not be a night worker if night time is defined as midnight to 7am.
The calculation of working hours ‘night shifts’ for workers will depend on what the Council considers working hours, in accordance to European Union (EU) regulations.
Before assigning work to a worker such that he becomes a night worker, the employer must ensure under Regulation 7 of the Working Time Regulations that:
The employer must ensure that each night worker has the opportunity of a free health assessment at regular intervals of whatever duration may be appropriate in his/her case. This has already been offered to all existing night workers and is undertaken by the Occupational Health Department on the Council’s behalf. Any new night workers must be offered a free health assessment as soon as employment is commenced.
This is necessary to determine whether the worker is fit to carry out night work. It should be provided free to the worker. Some medical conditions such as diabetes, stomach or intestinal disorders or chronic chest disorders may be affected or exacerbated by night work.
For further information contact Human Resources, who can arrange a health assessment with the Occupational Health Doctor.
Special provisions apply for workers between the age of 15 and 18.
These workers are entitled to a health and capacities assessment where work is carried out during the period 10pm to 6am. This differs from a health assessment in that it also considers such issues as physique, maturity and experience and takes into account competence to undertake the assigned night work.
It is the responsibility of managers to ensure workers who fall within this category receive a health and capacities assessment if required.
Employers have to keep sufficient records to show that the requirement to provide health assessments has been complied with. This should be held within each Department.
The records need to show: (a) who is a night worker; (b) when the night worker had an assessment and (c) the result of the assessment.
All workers are entitled to three weeks’ paid leave in each leave year, rising to four weeks for leave years as from 23 November 1999. This has been implemented throughout the Council. To ensure consistency in entitlements the Council has used this as an opportunity to implement an entitlement of four weeks annual leave rising to five weeks after five completed years Service at the start of a leave year. This is effective from 23 November 1999.
For those who have already accumulated five completed years service on 1 April 1999 annual leave will automatically rise to five weeks per annum from 23 November 1999 (pro rata until end March 2000). For all others leave will be based on four week per annum with effect from 23 November 1999 (pro rata until end March 2000). (For those on more senior grades there is an additional entitlement as outlined in the Staff Handbook).
While on leave a worker is entitled to his normal pay. Regarding booking of annual leave normal agreement applies. Please refer to Leave Policy held in Human Resources.
There are 3 types of rest entitlement under the Working Time Regulations: daily rest, weekly rest and rest breaks.
The Working Time Regulations provide that:
Daily rest - ‘an adult worker is entitled to a rest period of not less than 11 consecutive hours in each 24 hour period during which he works for his employer.
’ 1 Exclusions: excluded-sector workers; workers whose working time is unmeasured; ‘special case’ workers (subject to compensatory rest); shiftworkers when they change shifts and are unable to take the appropriate rest break between the end of one shift and the start of another, and workers involved in periods of work split up over the day (subject to compensatory rest); workers covered by a collective or workforce agreement that excludes or modifies the entitlement to rest periods (subject to compensatory rest). These modifications do not apply to young workers.
Weekly rest - ‘an adult worker is entitled to an uninterrupted rest period of not less than 24 hours each seven-day period.
This may, at the employer’s discretion, be taken as two uninterrupted rest periods:
Young workers are entitled to a rest period of not less than 48 hours in each 7-day period. This may not be averaged over a 14-day period.
A ‘week’ (or seven-day period) starts at midnight between Sunday and Monday unless agreed otherwise by a relevant agreement.
Rest Breaks – if an adult worker’s working time is more than six hours, he is entitled to an uninterrupted rest break of not less than 20 minutes.
Young workers are entitled to 30 minutes’ break where his daily working time is in excess of 4.5 hours.
Managers are responsible for ensuring these rest breaks are conformed to.
Where the pattern of work puts the health and safety of the worker at risk because the work is monotonous or the work rate is predetermined, the employer is required to ensure that the worker is given adequate breaks.
An adequate rest break could be in addition to the 20-minute break discussed above. Alternatively, the employer may be required to consider breaking down the 20-minute period into shorter but more frequent breaks
The Health and Safety Executive (HSE) enforces the following provisions of the Working Time Regulations:
The Council operates fully within the boundaries of the Working Time Regulations.
These regulations are minimal conditions, which have been laid down by the Working Time Regulations and should be complied to.
To disregard, overlook or fail to comply with any of these provisions is a criminal offence and the employer may be liable to pay a fine subject, to the statutory maximum (currently £5,000).
For any further advice or guidance please contact Human Resources