Our advice regarding working hours, rest breaks and holiday entitlements has been updated for 2014 with additional information. Let us break it down for you! If you are a Care Worker please see our new article here about your entitlements under the Working Time Regulations.
The Working Time Regulations entitle all (* see Exceptions below) Workers and Employees to:
- A minimum Daily Rest period of 11 hours uninterrupted rest between finishing your job and starting the next day. (Workers aged between 15-18 are entitled to a minimum daily rest break of 12 hours).
- A Weekly Rest period of 24 hours uninterrupted rest within each seven day period (Young Workers aged 15-18 are entitled to 48 hours); or, at the Employers choice, a Fortnightly Rest Period of 48 consecutive hours within each 14 day period.
- The weekly rest period should not include any part of the daily rest period.
- A break of 20 minutes if your daily working day is more than 6 hours long (or 30 minutes if you are aged 15-18 years and you work more than 4.5 hours at a stretch).
- If you are an Agency Temp then the Employer you are working for (not the Agency who employs you) is responsible for you receiving these minimum rest breaks.
- The first 2 type of rest periods are generally unpaid. The 20 minute break may be paid or unpaid, depending on what it says in your contract of employment. For more information on rest breaks please see the Direct Gov website here.
* Certain ‘special case’ workers are exempt from these rest break provisions and can be legitimately asked to work through their rest-breaks if:
- you are a shift worker who may not be able to take their daily or weekly rest periods between shifts. Shift Workers are defined as those engaged in activities involving periods of work that are split up over the day and those who work according to a certain shift pattern where workers ‘succeed’ each other at the same work station. The shift pattern may be continuous or not, but will involve the need for workers to work at different times over a given period of days or weeks
- there is a genuine need for continuity of production/service around the clock, eg. hospitals, residential institutions, care workers, press/tv/film/radio, public utilities, industries where machinery must be kept working 24 hours a day, research and development activities, agriculture
- the work is affected by unusual or unforeseeable circumstances beyond anyone’s control, or exceptional events, or where work is affected by an accident or risk of an accident
- the work involves security or surveillance which requires a permanent presence
- the work has a forseeable surge in activity, i.e. in agriculture, tourism and postal services
- there is a Collective or Workforce Agreement in place that excludes these rest-break obligations – but the workers must have been fully consulted with to ensure these are valid
In these cases, if you cannot receive your rest breaks you must be offered an equivalent period of ‘compensatory rest’ wherever possible. This compensatory rest should be given immediately after the end of the work period where possible. If this is not possible for objective reasons, the Employer should give you “such protection as may be appropriate in order to safeguard the workers health and safety” (e.g. an assessment of the worker’s continued fitness to work, reducing his/her workload or additional supervision).
The Government Department for Business, Innovation and Skills (previously BERR) has guidance that says a worker, even if they fall into one of these categories, must have a right to a minimum of 90 hours rest per week. Compensatory rest does not necessarily need to come out of time that would otherwise have been working time. A court case in 2012, Hughes v Corpos of Commissionaires Management Ltd confirmed that interrupted rest breaks can still count as compensatory rest – details are here – and that when considering whether or not a worker is a ‘special case’ worker, it is the workers activities that have to be considered, not those of the employer.
In 2014, in an unreported case (so we only know the name of the Claimant not the Care Home he worked for), an Employment Tribunal found that a care service provider was in breach of the WTR for not incorporating daily rest breaks and daily rest periods into a support worker’s shift pattern and for failing to offer compensatory rest. The Care Home employed approximately 150 staff with 25 managers. The Claimant, Mr Hood, claimed that there had been a number of occasions when he had not been permitted to take a rest break and that he had not been granted a full daily rest period an average of 3-4 times per month in a year. The Care Home’s staff handbook stated that rest breaks away from the service user were not to be taken during a shift. The Care Home argued that it was uneconomical to provide support to cover the occasions when Mr Hood was not granted his daily rest period. The Tribunal agreed that the service the Care home provided fell into the category of services that was exempt; however Mr Hood had not been offered compensatory rest periods.
The Tribunal found it difficult to understand why the home could not organise shifts so as to allow daily rest periods for its employees, as the home allowed employees who smoke to take a break during their shift and for that break they were covered by a Manager. The Tribunal felt a manager could also cover for rest breaks and that these rest breaks could be easily incorporated into the worker’s shift.
There are different Working Time Regulations rules for workers in air, sea and road transport industries (see our new Guide to Road Transport workers driving hours here), offshore workers, police and emergency services (see the next section for more details) and domestic servants employed in a private house are generally excluded from all WTD regulations (except daily and weekly rest breaks).
In addition, there is also the principle of Unmeasured Working Time. This applies to a Worker whose working time is not measured or pre-determined (and where the Worker has control over the number of hours they work) who is then excluded from all rest break provisions and the 48 hour maximum weekly working hours (see next section). This generally applies to Company Directors (and specifically those with autonomous decision making powers), Managers, Family Workers and Religious Workers. Breaches of rest-break provisions are made through a claim to Employment Tribunal (within 3 months of the breach) – although compensation is usually very limited – or via claims to the Health and Safety Executive.
Working Hours Time Limits
The legislation states that you cannot work for more than 48 hours per week, which is normally measured over a 17 week ‘reference period’. However, this ’17 week reference period’ can be amended where:
- there is a valid collective or workforce agreement in place the reference period can be extended up to a maximum of 52 weeks
- Workers can have a 26 week reference period if they live far from their workplace (e.g. offshore workers); if they work in security or surveillance that requires a permanent presence; or they do work that involves the need for continuity of service or production e.g. Press/Film/TV, hospital and care workers, farm workers, utility workers, dock and airport workers.
Information you need to know about the weekly working limit:
- If you are on a contract for a fixed period (Fixed Term PAYE or as a Worker), that is under the 17 or 26 week reference period (whichever your employer is using), your ‘reference’ period for calculating your working hours will be the actual length of your contract (see below).
- This 48 hour per week limit also applies if you have more than one job, i.e. the total amount of combined working hours you do should not exceed 48 per week. If it does, each Employer should ask you to sign an Opt-Out (see below).
- If you are an Agency Temp then the Employer you are working for (not the Agency that employs you) is responsible for ensuring you do not work more than 48 hours per week. See our new Guide to the Agency Workers Regulations which come into effect on 1st October 2011 and give ‘agency workers’ the right to equal treatment with permanent employees.
- Young Workers (those under 18 but over school leaving age) cannot normally work more than 8 hours per day (40 hours per week) and they cannot Opt-Out (see below) of these limits or have their hours averaged out.
- The ‘reference’ period takes into account any statutory holidays, sick leave, maternity/paternity/adoption/parental leave and if any Opt-Out’s (see below) where in place. The reference period is extended by the number of days on any of the above.
- There are different rules for workers in air, sea and road transport – see our new Guide here for road transport workers and the section below about Night Workers. Domestic servants employed in a private house are generally excluded from weekly hours limits. Those who have unmeasured working time (see previous section) are exempt from the weekly working hours limits.
- In the Film and TV industry and in many other industries Workers can be asked, by their Employers, to voluntarily sign an Opt-Out of this 48 hour limit (which is legally valid) – i.e. you agree that you can work for more than 48 hours per week. The Opt-Out is not a condition of your employment and it must remain optional and voluntary. Therefore even if you have signed your contract with an Opt Out in place you have the legal right to opt back in to the 48 hour limit at a later date – you have to give your employer a minimum of 7 days written notice by law to do this (check your contract in case it requires a longer time scale to Opt back in, as this is allowed).
- Young workers cannot Opt Out.
- You should not be subjected to any detriment by refusing or proposing to refuse to sign an Opt-Out agreement. If you are an employee and are dismissed because you refuse to sign an Opt-Out clause then this could be seen as automatically unfair dismissal and you could potentially make a claim to an Employment Tribunal.
- In April 2009 the UK won its right to retain the Opt Out – the European Parliament had proposed to remove the Opt Out provision within 3 years – so for now the Opt Out remains legal and valid.
- The number of hours you work per week can be averaged by your employer over the applicable 17/26 reference week period (or your contract length), rather than measured in one week, and the first 20 days holiday you are legally entitled to (see below) cannot be used to reduce your average number of hours worked. However with the Daily and Weekly Rest breaks and the Opt Out above included, the maximum in any week you should work is 78 hours. See the information below about what a ‘working week’ means.
Breaches of the 48 hour limit are dealt with by the Health and Safety Executive (i.e. a prosecution and/or a fine for your Employer, but not compensation for the worker).
The Working Week, is calculated with your ‘normal’ weekly working hours and any:
- Job-related training
- Job-related travelling time (including where this is an integral part of your work)
- Business/working lunches
- Time spent working abroad (for a UK company)
- Paid and some unpaid overtime (see below)
- Time spent on-call at the workplace (including time ‘sleeping’ when you are either working or asleep while on-call at the work-place – where ‘sleeping’ is allowed). See our new Care Workers article for more information about sleeping-time and Night Working under the Working Time Regulations.
- Time spent on-call elsewhere while you are actually working.
The Working Week does not include:
- Breaks when no work is done (e.g. lunch breaks)
- Normal travel to and from work
- Time spent travelling outside of normal working hours (for example an early meeting at a client’s premises where this requires travel the night before, this time is not counted)
- Time on-call spent away from the workplace (unless you are actually working)
- Unpaid overtime where you have volunteered to, for example, stay late to finish something off
- Paid or unpaid holiday.
There is extra protection under WTR for people classified as night workers.
- Night time is generally defined as the period between 11pm and 6am.
- You are a night worker if you regularly work at least 3 hours during the night time.
- As a night worker you should not work more than an average of 8 hours in each 24 hour period, excluding overtime (which is calculated over the appropriate reference period which is usually 17 weeks for Night Workers).
- If your job involves special hazards or heavy physical or mental strain you cannot work more than 8 hours in each 24 hour period (i.e. no overtime can be worked) and your working hours cannot be averaged over any reference period.
- It may be possible for a Workers and an Employer to enter into a Workforce Agreement that could modify or exclude the limits on night work.
- There are different night working rules for young people (they should not normally work between 10pm – 6am, but this can be varied to 11pm-7am).
Those who have unmeasured working time (see above) are exempt from the maximum length of night work under these provisions as are Domestic Servants in private households If you are a Night Worker your Employer must offer you a free health assessment before you start working nights and at regular intervals after that.
Paid holidays under the Working Time Regulations legislation
The Working Time Regulations also entitle all Workers and Employees to a legal minimum of 28 days paid leave each year (5.6 weeks – pro rata’d if you are part-time). Things you need to know:
- Your Employer has no legal obligation to ensure you have taken your statutory holiday entitlement, although they can serve you a notice to require you to take holiday on specified dates.
- You start building up your holiday entitlement as soon as you start work.
- You need to tell your employer when you want your leave but they can control when you take it (i.e. agree or disagree to the dates you want).
- Your Employer should specify the notice periods they require you to give, before you take leave, in writing. If this is not specified you must give at least twice the length of the intended leave period you wish to take – e.g. you give 2 days notice to take 1 days leave. Your Employer should reply (agree or disagree by giving counter notice) within the same length of time as your intended leave – e.g. you want 1 days leave, give them 2 days notice and they should reply within 1 day.
- Your Employer may restrict you taking leave through the following – by your employment contract, via custom or practice or by negotiations with a Trade Union or Employee Representative. They can restrict your leave because: they shut down at certain times; they can specify when you may or may not take your leave; they may cap the amount of leave that you can take at any one time. If such arrangements don’t already exist then your Employer must give you notice to require you to take your leave – of twice the length of the leave period they require you to take, e.g. they need to give you 2 weeks notice to require you to take 1 weeks leave.
- If your Employer denies you your rights to statutory holiday entitlement you can make a complaint to an Employment Tribunal. If the Tribunal upholds your complaint they may order your Employer to pay compensation.
- Holiday entitlement cannot be counted as weekly rest days, it is completely separate.
- If you are an Agency Temp then the Agency that employs you (not the Employer you are working for) is responsible for ensuring you receive your statutory minimum holiday entitlement. See our new Guide to the Agency Workers Regulations which come into effect on 1st October 2011 and give ‘agency workers’ the right to equal treatment with permanent employees.
- You should get paid for untaken holiday if you leave your Employer (but you have no legal entitlement to be paid if you cannot or choose not to take them all – unless you have been off sick, see below). For each week of holiday that you are owed you are entitled to a week’s pay – see below for further information.
- Bank and Public holidays can be included in these 28 days; at the moment there is no statutory right to take bank holidays off. Therefore if you take a day off as paid leave on a bank holiday it may count as one of your annual leave days under WTD legislation – depending on what your employment contract says. (For more information on Bank Holidays see below).
- Your employer may give you more leave than 28 days as part of your contract.
- There is no legal obligation that the first 20 days holiday entitlement, if unused, should be carried forward into the next leave year, unless you have been off sick (see below). The additional 8 days holiday entitlement can be carried over into the next holiday leave year, if unused, with your Employers agreement; although your Employer may not agree to this. Your Employer may choose to allow more than 8 days to be carried over though.
- The Government increased the minimum statutory holiday entitlement to 24 days per year from 1st October 2007, and to 28 days per year from 1st April 2009 for those working 5 days per week.
Rolled Up Holiday Pay
Freelancers in the TV and Film Industry are often classed as Workers for the purposes of WTD so are eligible for this holiday. However, often the holiday cannot be taken during the contract period, as the contract is too short, and may be included in your weekly/daily rate (called ‘rolled-up’ holiday pay).
This practice was ruled unlawful by the European Court of Justice in March 2006, and the Department of Trade and Industries guidance has been amended to reflect this judgement, saying that payment for the statutory annual leave should be made at the time when the leave is taken. Your contract should therefore show your daily/weekly rate plus a rate for holiday pay seperately.
Calculating your Holiday entitlement
The simplest way to calculate your holiday entitlement is to multiply the number of days you work each week by 5.6. If you work part-time, irregular or freelance hours you can calculate your entitlement on this Direct Gov page. The holiday entitlement of 5.6 weeks is equivalent to 12.07 % of the hours worked over a year.
Calculating leave for shift workers
it’s often easier to work this out by the number of shifts you get off, averaged over a 17 week period – e.g. if you work 4 x 12 hour shifts on and then have 4 days off, the average working week is 3.5 x 12 hour shifts (this is calculated by the number of shifts worked (4) divided by the total number of days in the shift pattern (8) x 7 days – so 4 divided 8 x 7 = 3.5). So, 5.6 weeks holiday is 5.6 x 3.5 = 19.6 x 12 hour shifts holiday entitlement.
Calculating holiday entitlement for term-time workers
You need to calculate how many hours a week you work on average each year, then multiply this by your holiday entitlement, e.g.
- If you work 40 hours per week for 40 weeks of the year – 40 x 40 = 1600 working hours a year. 1600 divided by 46.4 weeks (52 weeks less 5.6 weeks) = 34.48 hours.
- Multiply 34.48 hours x 5.6 weeks = 193.09 hours holiday over a year.
- To convert this to days, divide this number by the number of hours you work each day.
‘Rounding’ up holiday entitlement
If your holiday entitlement includes a part-day your Employer may choose to round this up to a whole day (they cannot round it down).
Please note that the statutory paid holiday entitlement is capped at 28 days. So, if you work 6 days a week, you are not entitled to more than 28 days holiday under statutory entitlement (your Employer may give you more) – e.g. 5.6 x 5 days per week = 28 days but 5.6 x 6 days per week = 33.6 days is not a legal entitlement.
Holiday entitlement during sick leave and sick leave during holidays
Finally in 2012 we are getting closer to some clarity on what happens in these situations – see our August 2012 Guide to holiday entitlement and sick leave here for full details.
A Week’s Pay – how much pay should you receive for a week’s holiday?
- A week’s pay is calculated in accordance with the definition of a working week in the Employment Rights Act 1996 which says that a ‘working week’ includes overtime only if this is contractual, i.e. it is specified in your employment contract.
- If your overtime is not specified in the contract it is not counted. However, in 2013, there are signs that this may change – see more details in our new Guide ‘How to Avoid Confusion When Calculating Holiday Pay‘ and we will update this post later in 2014, when the Employment Appeals Tribunal have decided on 3 cases they heard in summer 2014.
- For example, if you are contracted to work 20 hours per week but regularly work 40 hours per week with overtime, but this overtime is not contractual, then your payment for a weeks holiday entitlement will be based on 20 hours (but see article above).
- If you work with fixed hours and pay then the amount due for a weeks pay is the normal pay you receive for a weeks work.
- If you work with variable hours and pay (e.g. bonus, commission) then a weeks pay equals the average hourly rate over the preceeding 12 weeks of pay multiplied by your normal working hours (but see ‘how to avoid confusion’ article above as things are changing in 2014).
- If you work shifts a weeks pay equals your average weekly hours over the preceeding 12 weeks of pay at your average hourly rate.
- If you work with no normal working hours a weeks pay is the average pay you received over the preceeding 12 weeks (that were paid).
- To calculate a week’s pay (which you need to do for redundancy payments, holiday pay and pay during notice periods) look at this link.
- A week’s pay will generally not include benefits in kind – pension, car, health cover. Bonuses, if they are discretionary, may be excluded too. Any salary that is sacrificed through a ‘salary sacrifice’ scheme may also not be included. Annual contractual bonuses may be included on a pro-rata basis if they are possible to quantify at the point of calculation.
To see our Guide to the extra Royal Bank Holiday in 2011 and 2012 and how this affects Working Time Regulations holiday entitlement click here. There are 8 permanent Bank Holidays in the England and Wales (and 9 in Scotland and 10 in Northern Ireland). However:
- There is no statutory right for Employees to have paid leave on bank holidays (but your employment contract may allow this).
- There is no statutory right to extra pay if you work on a bank holiday. Any right to extra pay depends on the terms of your employment contract.
- Part-time employees should receive a pro-rata’d allowance of paid bank holidays to ensure they are dealt with fairly – even if they do not normally work on the days the bank holidays fall.
- Where a bank holiday is alligned to a Christian festival (i.e. Easter) there is no requirement to allow additional time off on other dates for employees who practice other religions.
- The statutory holiday entitlement of 28 days MAY include bank holidays (or your Employer may give you some or all of the bank holiday days in addition to the 28 days).
- If you are on Statutory Parental Leave, Statutory Paternity Leave, Statutory Maternity Leave or Statutory Adoption Leave during a bank holiday are you entitled to a compensatory day off (or pay in lieu). This depends – if you receive the minimum holiday entitlement of 28 days per year which includes bank holidays then any bank holiday that falls during your parental leave would entitle you to receive a day off in lieu for this bank holiday. However, if you receive paid time off for bank holidays on top of the statutory minimum 28 days then your right to a compensatory day off or pay in lieu will depend on what your employment contract (or any holiday policy) says.
If you are an Employer and need ongoing professional help with any staff/freelance issues, or a Contractor/Freelancer/Employee with a complicated employment related problem, then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by Anna Federowicz