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Our advice regarding working hours, rest breaks and holiday entitlements has been updated for 2020 with additional information. Let’s break it down for you! If you’re a Care Worker, please see our article about your entitlements under the Working Time Regulations.
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The Working Time Regulations entitle all (*see exceptions below) Workers and Employees to:
Certain ‘special case’ workers are exempt from these rest break provisions and can be legitimately asked to work through their rest-breaks if:
In these cases, if you can’t receive your rest breaks, you must be offered equivalent periods of ‘compensatory rest’ wherever possible. This compensatory rest should be given immediately after the end of the work period where possible.
If this isn’t 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 doesn’t necessarily need to come out of time that would otherwise have been working time.
A court case in 2012, Hughes v Corps 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’s the workers activities that have to be considered, not those of the employer.
In December 2016, in Grange v Abellio, the EAT ruled that a worker can bring a claim for a denial or their right to a rest break, despite them not explicitly requesting the break and being refused it, if the working arrangements prevent the worker from exercising their entitlement to a rest break. This isn’t the same as a worker who chooses not to take a break, though. Mr. Grange, until July 2012, had worked an 8.5 hour day with a half hour unpaid lunch break. In July 2012, he received an email stating he should work eight hours without a break and leave half an hour earlier. Mr. Grange lodged a grievance in July 2014 that he’d been made to work without a rest break. The original Employment Tribunal said there had to be a refusal of an express request to exercise the right to a break in order to bring a claim. The EAT upheld Mr. Grange’s appeal.
This case also confirmed that employers need to make sure they give staff the opportunity to take a rest break if they wish to; employers cannot take a ‘passive role’ in giving rest breaks to workers, they must be proactive about giving the rest breaks (even if the worker chooses not to take the break). Importantly, the worker must know at the start of a rest break that he/she is on a rest break!
In 2014, in an unreported case (so we only know the name of the claimant, not the care Care Home he worked for – although we have since been told it was Accept Care Limited Consett, County Durham [this isn’t yet verified]), 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 hadn’t be permitted to take a rest break, and that he hadn’t been granted a full daily rest period an average of three-four 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. They argued that it wasn’t economical 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, but that Mr. Hood hadn’t 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 which was 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.
In Russell v Transocean International Resources Ltd 2011, Mr. Russell and others were employed on offshore oil and gas installations and all of the employees (except one) were contracted to work for two weeks offshore, followed by two weeks offshore (known as field breaks). Whilst working offshore, they generally worked a 12 hour shift each day followed by 12 hours off duty (still offshore), but didn’t get any days off. The Employment Appeal Tribunal had to consider whether the period spent onshore should count towards the workers’ entitlement to paid annual leave.
The EAT also held that the time available during field breaks, after allowing the two days compensatory rest (to account for the fact they worked offshore without a weekly rest period) was more than sufficient to cover their entitlement to annual leave. The Court said that every worker must be entitled to a rest break, a daily rest break and a weekly rest period; each period must be measured separately from each other and cannot overlap with one another. However, there’s no rule that entitlement to holiday must come out of working time. The WTR don’t require that holiday entitlement must be taken consecutively or that the weeks cannot be interrupted.
In December 2017, the ECJ found in Maio Marques da Rosa v Varzimsol that there’s no requirement that workers rest on the 7th day. Mr da Rosa was employed by Varzimsol, a Portuguese casino owner. The casino was open 364 days a year and workers sometimes worked seven consecutive days a week (followed by two consecutive days off). When da Rosa was made redundant, he brought a claim that he had been denied his weekly rest periods. The case was referred to the ECJ to decide if EU law should be interpreted as meaning the weekly rest period must be granted at the latest on the 7th day after six consecutive working days, or if employers can choose. The ECJ decreed that the legislation doesn’t state when in each seven-day period the minimum rest period must be taken. In the UK, Employers can choose a seven-day or 14 day period, meaning a UK employer could give a 48 hour rest period at the beginning of one consecutive 14 day working period and another at the end of a second period. This is theoretical and I doubt would represent good practice – at least on the Health and Safety front!
In January 2018, the EAT in Crawford v Network Rail Infrastructure Limited found that Network Rail were in breach of its obligations under the Working Time Regulations by not providing Mr Crawford with sufficient rest. Railway workers have different rules under the WTR and can be excluded from the entitlement to a ‘standard’ rest break, but should be given an equivalent period of compensatory rest where possible. Crawford was a signaller and 6 trains usually passed through his signal-box every hour, so he was unable to take an uninterrupted break for 20 minutes during his shift (total eight hours). Network Rail told him he could take shorter breaks instead, although he would remain on call (which added together were more than 20 minutes). However, in some regions, Network Rail provided a relief signaller to allow the signallers their uninterrupted rest break; this wasn’t provided in Crawford’s region. Crawford alleged a breach of the WTR as his break wasn’t a standard rest break or an equivalent period of compensatory rest. The original employment tribunal found in Network Rails favour, so Crawford appealed to the EAT and was successful. The EAT rejected Network Rail’s point that a 20 minute period of compensatory rest could be made by adding up other shorter periods of rest. The EAT said the compensatory rest time must, as far as is possible, amount to a single break of at least 20 minutes. Network Rail had a way to provide him with sufficient rest, by providing a relief signaller as they did in other regions.
Network Rail appealed this decision, and in March 2019 the Court of Appeal agreed with Network Rail. The Court said that in such ‘special’ cases (railway workers) there was no reason in principle why a break had to be for an uninterrupted period of 20 minutes, and in appropriate circumstances it might be better to have shorter, more frequent breaks (which in aggregate amount to 20 minutes or more).
There are different Working Time Regulations (WTR) 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 WTR regulations (except daily and weekly rest breaks).
In addition, there’s also the principle of Unmeasured Working Time. This applies to a Worker whose working time isn’t measured or pre-determined (and where the Worker has control over the number of hours they work), who’s 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 three months of the breach), although compensation is usually very limited, or via claims to the Health and Safety Executive.
Workers are protected from being subject to any detriment by their Employer if they refuse (or propose to refuse) to comply with a requirement that their Employer imposes which is in contravention of the WTR, or where they refuse to forgo a right given to them by the WTR. Compensation for injury to feelings can be awarded by an Employment Tribunal in these situations.
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:
Information you need to know about the weekly working limit:
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).
In an interesting case in September 2020, an Employment Tribunal ruled that an engineer had been unfairly dismissed after he resigned over a dispute about his pay while travelling for work.
In Mr T Holloway v Aura Gas Ltd, Mr Holloway was unfairly constructively dismissed after the company refused to pay him overtime for travelling between jobs. His contracted hours were 45 per week and he had not signed an opt-out, but was regularly working over 48 hours when his travel was taken into account.
The Working Week is calculated with your ‘normal’ weekly working hours and any:
The Working Week does not include:
There’s extra protection under WTR for people classified as night workers.
Those who have unmeasured working time (see above) are exempt from the maximum length of night work under these provisions, as they’re Domestic Servants in private households. If you’re a Night Worker, your Employer must offer you a free health assessment before you start working nights and at regular intervals after that.
Until May 2019, the position regarding which records your employer should keep were:
However, in May 2019, the Court of Justice of the European Union (CJEU) delivered an important judgement in the case of CCOO v Deutsche Bank SAE. CCOO are a Spanish trade union who wanted a system for recording how long its members actually worked each day (including overtime) so it could check the actual hours complied with their members’ written working conditions.
Under Spanish law, employers then only had to keep a record of overtime hours worked each day by each worker, rather than all the hours they actually worked (it has changed since, see below). The Court was given evidence that nearly 54% of all overtime was not recorded.
The CJEU said that all workers had a fundamental right to limit their working hours and to take adequate rest, and the only way to ensure that these rights were met was to accurately record all the number of hours worked and when it was done (including overtime).
Therefore, all member states must require employers to set up “an objective, reliable and accessible system enabling the duration of time worked each day by each worker”. This ruling appears to apply to all workers, even those whose time is unmeasured or those who have opted out of the maximum working week.
This decision is binding in the UK and affects all employers. However, the decision goes further than the UK’s Working Time Regulations require at the moment, but UK employment tribunals must interpret the legislation in accordance with CJEU decisions. Therefore, employers should have systems in place to measure all the hours their staff work, not just those hours that are set out in their contract of employment. The CJEU also said that employers cannot avoid having these systems in place because they are too expensive to implement!
However, the UK government had intervened in this case to argue against the CJEU outcome and the UK will need to amend the Working Time Regulations to comply with this decision (and could face infringement proceedings from the European Commission if they fail to do this). Because of the UK government’s opposition to this decision and because of Brexit it looks unlikely the UK government will amend the WTR any time soon!
There would also need to be updated guidance from the Health & Safety Executive (as they are the body that enforces WTR record-keeping obligations)! So as things stand at the moment, employers may wish to wait and see what happens next (i.e. make no changes to their current methods of recording hours of work, if they don’t currently comply with the CJEU decision). We’ll update this further if there are any changes!
(Since 12th May 2019, all companies in Spain are now required to have all their workers check in and out daily so they can keep a record of the exact hours they put in, and the employer can be fined up to €6,250 if they fail to do so. This is to stop the long-running culture of unpaid extra hours.)
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’re part-time). Things you need to know:
The government announced, on 27th March 2020, that workers who have not taken all of their statutory annual leave entitlement in 2020, due to the coronavirus pandemic, will now be able to carry it over into the next two leave years.
Since 8th June 2020, if you take holidays abroad in countries that are not on the government’s safe travel corridor list, then you will need to self-isolate for 14 days on your return to the UK. In these circumstances:
Employers can obviously refuse your leave requests in the future if you would be required to self-isolate and this is inconvenient to the business; they can also revoke their authorisation of your planned leave, in advance of you going abroad – as long as they give you the same number of days notice, as the holiday you wanted to take would have lasted. But employers should tread carefully when doing this, taking into account the reason why the holiday was booked.
Freelancers in the TV and film industry are often classed as workers for the purposes of WTR and are eligible for this holiday. However, often the holiday cannot be taken during the contract period if the contract is too short, and so it may be included in your weekly/daily rate, called rolled-up holiday pay.
This practise was ruled unlawful by the European Court of Justice in March 2006; the Department of Trade and Industries guidance has been amended to reflect this judgement, saying 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 separately.
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 (casual or zero hours) or freelance hours you can calculate your entitlement on this Direct Gov page.
Alternatively, the Department for Business, Energy & Industrial Strategy produced a guide in 2019, called ‘Holiday Pay – Guidance on calculating holiday pay for workers without fixed hours or pay’ which you can see here.
Where a worker does not have regular or normal working hours, holiday pay is calculated based on average weekly pay in the 12 weeks before the holiday date (or if the worker did not work in the previous 12 weeks, then the last 12 weeks they worked/earned).
On 6th April 2020 the reference period in the WTR for calculating annual leave increases from 12 to 52 weeks. If the worker has been employed for less than 52 weeks, their holiday pay is based on the number of complete weeks they have worked. This change will only affect workers whose pay varies. You can read more information about this here.
As this can be complicated and time-consuming, the calculation of 12.07% is often used to calculate holiday entitlement and holiday pay (based on 52 weeks less 5.6 weeks = 46.4 weeks. 5.6 weeks x 46.4 weeks is 12.07%).
However, although the 12.07% method is recommended by Acas, there’s criticism of this method and in early 2018 the EAT, in Brazel v Harpur Trust (where Ms Brazel was a visiting music teacher at Bedford Girls’ School working on a term time only contract, but with no set regular hours and no set term length) held that using the 12.07% method to calculate holiday pay was incorrect for workers who are employed on permanent term-time and/or zero hours contracts with variable hours, and their pay should be calculated by their average earnings over the previous 12 weeks.
This case went to the Court of Appeal in August 2019 and the CoA agreed with the EAT (accepting the fact that this could mean some part-year workers are entitled to a higher proportion of their annual earnings as holiday pay; because Ms Brazel was employed on a permanent contract and was therefore entitled to 5.6 weeks holiday a year).
This decision does not affect workers on part-time regular hours contracts. This also does not affect casual workers, only employees, so the Acas guidance of 12.07% is aimed at casual workers only, not permanent employees (we wait for Acas to update their guidance!).
This decision does mean that all people employed under permanent contracts who work irregular hours will be entitled to 5.6 weeks holiday pay each year, regardless of the number of weeks they actually work throughout the year. Employers should, therefore, assess the employment status of their workers who work irregular hours, if they are employed on a permanent contract, this will affect them.
The Harpur Trust may, of course, appeal this decision to the Supreme Court.
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 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  the 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 = 235.2 hours. There is a shift holiday calculator here which you might find useful.
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 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 six days a week, you’re 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.
Check out our article, “How to calculate holiday pay when staff receive overtime and commission payments“, for more information.
There are two different types of ‘Bank’ Holidays – bank holidays and public holidays.
There are currently six permanent bank holidays in England and Wales, plus Christmas Day and Good Friday, which are public holidays. In Scotland there are seven permanent bank holidays, plus Christmas Day and Good Friday. There are also other public or local holidays which can be determined by local authorities, based on local tradition. In Northern Ireland, there are eight permanent bank holidays, plus Christmas Day and Good Friday.
Additional bank holidays can be declared, by law, to celebrate special occasions, for example there was a special bank holiday on 29th April 2011 to celebrate the royal wedding of Prince William and on 5th June 2012 to celebrate the Queen’s Diamond Jubilee. However, an extra given bank holidays do not necessarily increase your entitlement from 28 to 29 days holiday entitlement under the WTR, it depends how your contract of employment is worded:
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