The Working Time Regulations 1998 (implementing the European Working Time Directive) were enacted to safeguard the health and safety of workers. The regulations impose a limit on working hours, in addition to providing rights to daily and weekly rest periods, and holiday entitlement. They apply to all workers, not just employees.
As an employer, you must ensure that your workplace complies with the Working Time Regulations.
As an employer, you have certain obligations under the Working Time Regulations to your employees. These include:
Generally speaking, a worker’s working time (including overtime) must not exceed 48 hours a week on average (calculated over a 17-week reference period). As an employer, you must take reasonable steps to ensure that this limit is complied with, in order to fulfil your health and safety obligations. However, an individual worker may choose to agree to work more than the average 48-hour weekly limit, and can do so by signing a written agreement to that effect.
There are specific provisions relating to young workers and night workers.
The Working Time Regulations also provide that a worker should be allowed the following rest periods:
Full-time workers are entitled to a minimum of 5.6 weeks’ (28 days’) paid holiday leave per year. A part-time worker is entitled to 28 days’ holiday reduced pro rata, according to the number of days they work each week. For example, if an employee works three days a week, their holiday entitlement is 17 days (16.8 rounded up to 17). As an employer, you may specify the days on which holiday leave may be taken. This allows organisations, such as schools, to require workers to take holiday leave during periods of closure.
Workers continue to accrue holiday entitlement during long-term sick leave, maternity leave, and any other equivalent period of leave. If workers are unable to take their entitlement because of that leave, they should be able to carry it over to the next holiday year. For workers on long-term sick leave, case law now indicates that they should be able to carry it forward 18 months from the end of the holiday year in which it was accrued.
Law on holiday pay
Workers are entitled to be paid their ‘normal remuneration’ during annual leave, at a rate of a week’s pay for each week of leave. For workers who do not have normal working hours and who do not receive a fixed rate of pay, employers must average out the employee’s earnings over a 12-week reference period in order to ascertain what constitutes a ‘week’s pay’.
In some cases, employers are obliged to include overtime payments when calculating a worker’s holiday pay. This will vary from case to case. In brief, however, payments that are ‘intrinsically linked’ to the performance of tasks the worker is required to carry out under the contract of employment and payments linked to the worker’s professional and personal status should be reflected in holiday pay. This can include bonuses and commission as well as overtime.
The rules on calculating holiday pay can be complicated (and are currently being disputed in the courts), and we would recommend that you seek legal advice if you are unsure of your obligations in this area.
We have considerable experience in advising employers in respect of their obligations under the Working Time Regulations, and can help you to understand the duties owed to your employees as a result. Our Employment Lawyers can also review your employment contracts, policies and procedures to ensure that they are compliant with the legislation.
In most employment situations taking legal advice early on can often stop the situation from escalating and will save you time and money later. With our proactive advice, Thorntons Employment Law team can help you over Working Time Regulations compliance and wider employment law advice. Give one of our team a call on 03330 430 350 , or complete our online enquiry form and we will contact you.
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