The Working Time Regulations set a maximum limit on weekly working hours. The general rule is that working time, including overtime, in any reference period, shall not exceed an average of 48 hours for each seven days.
You are under a positive duty to take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that this limit is not exceeded.
The reference period is any period of 17 weeks in the course of employment.
The reference period can also be extended to a period not exceeding 52 weeks, by means of a collective or workforce agreement. The 17-week reference period is extended to a 26-week period where the employee is engaged in special activities. This occurs where a business involves security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers, or security firms.
In the case of a temporary employee, the reference period may be equivalent to the length of time for which that employee is employed. Where the employee has worked for less than 17 weeks (26 weeks in the case of a special case worker or up to 52 weeks if agreed by collective or workforce agreement), the 48-hour limit applies to the average weekly working time, for whatever period has lapsed since the employee started work.
Where the employee has complete control over the hours they work, time is not monitored or determined by the employer. The limit on weekly working time does not apply. The duration of working time is not measured or predetermined, but is determined by the employee, for example where the person operates as a family worker.
Nothing stops you and your employee from agreeing in writing, that the 48-hour limit on average working time will not apply in a particular case. Such an agreement may either relate to a specified period, or apply indefinitely. The agreement shall always be terminable by the employee giving not less than seven days' notice to their employer in writing. The parties can agree a longer period of notice not exceeding three months.
This notice is commonly known as an 'opt-out' agreement, and will only be binding if you, the employer:
Your employee will be protected against detrimental treatment if they refuse to sign an opt-out agreement. If their refusal leads to a dismissal, that dismissal will be treated as automatically unfair, irrespective of the length of service.
Should you fail to observe the weekly working time limit, you will be liable to the sanctions and penalties presently available to the Health and Safety Executive and local authorities, under health and safety legislation.
The Health and Safety Executive or local authority can issue improvement and prohibition notices. In extreme cases, the employers can be prosecuted and this can lead to unlimited fines.
In England and Wales, the decision to prosecute is taken by the Health and Safety Executive, which also conducts cases. In Northern Ireland these roles are carried out by the Health and Safety Executive Northern Ireland and in Scotland by the procurator fiscal (a specialist health and safety division having been set up within the).
You have a general duty to protect your employee's health and safety at work. If the weekly working time limit is exceeded, you risk being in breach of a duty of care. The Regulations provide additional protection as they contain duties on you to observe the limits on weekly working time. If you fail to observe those duties, your employee can enforce such duty as a civil claim in the courts.
The Regulations also provide your employees with two further rights if they refuse to work in excess of the maximum weekly working time limit:
In addition to these rights your employee will be entitled to enforce the maximum weekly working time limit through action in the civil courts.