Working Time Regulations
My employer says that I must sign an ‘opt out’ or I will not be employed, is this lawful?
The Working Time Regulations (Northern Ireland) 1998 (as amended) permit a worker to ‘opt out’ of the maximum working week of 48 hours (40 hours for young workers, ie, someone who is above normal school leaving age and under 18) as provided for in the Regulations. This means that an employee can choose to work in excess of an average of 48 hours per week but can also choose to opt back into the Regulations. The regulations do not permit an employer to make an offer of employment conditional upon the completion of an opt out and so your employers actions are potentially unlawful and in breach of the Working Time Regulations.
What is the maximum number of hours per week that we can request our employees to work?
The Working Time Regulations (Northern Ireland) 1998 (as amended) restrict the number of hours that a worker can be required to work to a maximum of 48 hours per week on average (maximum of 40 hours per week for young workers which cannot be averaged out) over a reference period of 17 weeks (or other period as set by a workforce or collective agreement).
However, a worker can agree to ‘opt out’ of the maximum working week and choose to work in excess of an average of 48 hours per week. If the employer and employee are in agreement with this then an opt out agreement should be completed by the employee. Sample wording is detailed below. An employee can then choose at any time to opt back into the maximum working week of 48 hours (on average) giving appropriate notice. Please note that young workers (those who are above normal school leaving age and under 18) cannot opt out of the maximum working week of 40 hours.
I (name) agree that I may work for more than an average of 48 hours per week. If I change my mind, I will give my employer (state period of notice) notice in writing to end this agreement.
Signed ___________________ Date ___________
We have just started a part- time employee who works full -time in another job and may thus exceed the maximum working week provided for in the Working Time Regulations. Is this lawful and do we need to have anything in writing to protect ourselves as an employer?
The Working Time Regulations (Northern Ireland) 1998 (as amended) state that a worker cannot be required to work in excess of an average of 48 hours per week. While the Regulations do not clearly state that a workers total working hours (where there is more than one employer) should be counted for the purposes of establishing the maximum working week (with an exception for young workers) employers are advised to do so for health and safety reasons. Employers are advised therefore to check with workers whether they have more than one job and to establish if the total working hours exceed an average of 48 hours. Where they do and the worker wishes to continue to do so, it is suggested that the employer encourages the worker to sign an opt out certificate (see above) stating clearly that they wish to opt out of the maximum working week.
Employers are obliged to count all of the hours worked by a young person (who is aged over the normal school leaving age and under 18) to ensure that they are not working in excess of the maximum working week of 40 hours (which cannot be averaged or opted out of).
My employer says that we are only entitled to a 20 minute rest break per day by law, even though we work 8 hours a day, is this correct?
Your employer is correct. The Working Time Regulations (Northern Ireland) 1998 (as amended) provide for a rest break of 20 minutes where a worker is required to work more than 6 hours at a stretch. This break may be unpaid and should be taken during the working day and not at the start or end of the day and must also be taken away from the normal work station so as to ensure that a worker gets their rest break. The Regulations place an obligation on an employer to ensure that workers can take their rest break. Young workers ie, workers over school leaving age and under 18 are entitled to a rest break of 30 minutes where they are required to work for more than 4 ½ hours at a stretch.
What does ‘compensatory rest’ mean and when does this apply?
The Working Time Regulations (Northern Ireland) 1998 (as amended) provide for workers to get a total of 90 hours rest in any week ( the pattern of which may vary from that set out in the Regulations). This is the total of the daily rest period of 11 hours between each working day and weekly rest period of 1 day off per week. If a worker is required to work during the daily or weekly rest period they should be given an equivalent period of rest to compensate them for the rest that was missed, as soon as it is reasonably practicable to do so.
Compensatory rest is permitted in line with the Working Time Regulations for shift workers, where changes have been made by collective or workforce agreement and special case exclusions. Information regarding special case exclusions can be found in the following link:
What is working time?
Working time is defined as any period when a worker is working at their employer’s disposal and carrying out their activity or duties, or any period during which a worker is receiving relevant training. It can include:
- Working lunches
- Travel time – where this is part of a workers work, e.g. travelling salesperson
- Work -related training
It does not include normal travel between work and home, rest breaks, time spent travelling outside normal working hours and non-job related training.
Is time spent on-call working time?
Working time is defined as any period during which a worker is working at their employer’s disposal and carrying out their activity or duties, which could include time spent on-call. Recent cases have given some interpretation to the situation of time spent working on-call and distinguish between two types of on-call time.
- On-call Time – where a worker is obliged to be at their workplace and carry out duties at employer's request, and,
- Inactive On-call Time – where work is on call but not required to carry out any duties, for example, they are at their home.
Time spent on-call in the first category is viewed as working time for the purposes of the Regulations.