Workers' rights in the UK around working hours and breaks are among those most at risk from Brexit.
Limits to the length of the working day and week are set out in the Working Time Regulations 1998 (WTR), which enforce the European Union Working Time Directive in the UK. The directive was designed to protect workers' health, safety and welfare.
The UK will continue to observe rulings from the European Court of Justice (ECJ) until the end of the Brexit transition period. At this point, the UK will be able to change or repeal the WTR. Tribunals will be free to diverge from the ECJ's rulings, or decisions by UK courts that rely on them.
The WTR cover all workers; not just employees. They do not apply to senior managers and others whose hours are not predetermined, and who can exercise control over them.
In summary, the regulations guarantee:
- A ceiling of 48 hours on the average working week. This figure is averaged over a reference period – normally 17 weeks.
- A ceiling on night work of an average of eight hours in every 24.
- A 20-minute uninterrupted break away from your workstation where your working day is longer than six hours. The break must be taken during your working time, i.e. not at the start or the end of your shift. This statutory rest break need not be paid, though you may have a contractual right for it to be paid – especially if the NUJ is recognised in your workplace.
- A daily rest period of 11 hours every working day – though, exceptionally, part of this can be deferred to be taken at the next available opportunity.
- A weekly rest period of 24 hours once in every seven days, or 48 hours in every 14 days.
- A free health assessment for all night workers, with the possibility of transferring to day work (where it is available) if working at night is damaging a worker's health.
- The right to 5.6 weeks' annual leave. Four weeks of this must be taken and cannot normally be carried over into the following year.
What counts as working time?
Working time does not include:
- Time off the premises when you have to stay in phone contact with your employer in case you are needed, but are free to decide where you spend that time, and do not have to respond and provide your services immediately when contacted. So, if you are at home and by a phone in case your employer needs you, you are not working.
- Training at a college.
- Commuting time to and from work.
- Time taken to travel to an occasional meeting away from your workplace, for example setting off half an hour early to get to the location of an away-day.
Working time does include:
- Paid and unpaid overtime required as part of your role.
- Shift overruns – where a task has to be completed even though your shift has ended, for example a medical emergency.
- Time when you are required to remain ‘on call' at your employer's premises, even though you are free to spend that time relaxing or sleeping.
- Time when you are required to remain ‘on call' within any location prescribed by your employer, including your own home, so that you are in a position to respond immediately to provide services.
- Time spent sleeping overnight when 'being on the premises' is a requirement of your job, so that you could be disciplined if you left those premises without permission.
- Training at your workplace arranged by your employer.
- Time taken while travelling between appointments.
- Time spent by union officials during the working day on union duties – for example, attending meetings at the workplace, with the employer's agreement, to discuss pay negotiations or health and safety concerns.
- A working lunch.
An employer is entitled to replace your rest breaks by an equivalent period of 'compensatory rest' if your activities 'involve the need for continuity of service'. There is another exception for unusual and unforeseeable circumstances – an accident, for example.
If you use a keyboard, your employer also has obligations to provide rest breaks under the Health and Safety (Display Screen Equipment) Regulations 1992. The Health and Safety Executive website has extensive information on these.
Your employer must offer you an uninterrupted rest break of at least 20 minutes if your working day is longer than six hours. You are entitled to spend it away from your workstation. There is no requirement under this minimum standard for your employer to pay you for the break, or for it to count it towards your working day.
However, your contract may entitle you to a longer break than this – particularly if you are in a workplace where the NUJ is recognised and breaks are covered by a collective agreement.
The break must be during your working day, i.e. not at the beginning or end, but can otherwise be at a time specified by your employer.
A period of 'downtime', when you are allowed to stop working but required to remain in contact with your employer, is not a rest break, even if it turns out to be uninterrupted. You must know at the start of your break that it will not be interrupted by work duties.
The Working Time Regulations covering daily rest breaks do not apply where a worker's working time is 'unmeasured'. This term is a little vague but is intended to apply to senior managers and executives who genuinely have control over their working time. These workers are entitled to paid holidays but do not receive other working time rights. Workers who are free to set their own hours are exempt from the working time limits and rest break provisions.
The problem is that many managers in workplaces with a long-hours culture behave as though this exemption also applies to other workers, for the so-called 'voluntary' work they 'choose' to put in over and above the hours specified in their written contract document. It does not. You should take further advice if you are concerned about unpaid overtime.
The NUJ campaigns on the issue of unpaid overtime and encourages members to take part in the TUC's 'Work Your Proper Hours Day' each February. This marks the day on which the average person who does unpaid overtime finishes the unpaid days they do every year, and starts earning for themselves. The WorkSMART website has an unpaid overtime calculator which you can use to work out how many hours of free work you are giving to your employer.
You are entitled to a daily rest period of at least 11 consecutive hours, and a weekly rest period of at least 24 hours. Your employer may average this over two weeks.
They are also allowed to modify this in special cases or, if there is a collective agreement, by providing an equivalent period of compensatory rest.
Many NUJ members work night shifts. If you normally work at night, perhaps on regular, rotating shifts, you fall under the protection of the Working Time Regulations 1998 (WTR). If you work occasional night shifts, you do not.
The regulations class night work as being at least three hours of work carried out between 11pm and 6am. Your employer cannot require you to complete more than an average of eight hours of night work per day. This average is usually calculated over 17 weeks, but it can be over a longer period of up to 52 weeks if workers and your employer agree to do this – most often, under a collective agreement.
As workers must take at least two days off in every fortnight, this means that the average weekly limit for night work is 48 hours per week (six days multiplied by eight hours). No opt-out from this limit is allowed.
An exception to the average is where night work involves special hazards, or heavy physical or mental strain. In these cases, there is an absolute daily limit. Work cannot be continued beyond eight hours in any 24.
For some workers – for example, security guards, caretakers and those doing certain jobs which cannot be interrupted – the regulations restricting night work to eight hours do not apply.
As with dayworkers, night workers are entitled to at least 20 minutes' rest during any period of work lasting more than six hours.
There is no provision to opt-out from the limits on night work.
Your employer must offer you a free health assessment before putting you on a night shift, unless you've been assessed previously, and that assessment may still be relied on. You do not have to accept the offer. You must also be offered a free repeat assessment at regular intervals, for example every 12 months. The assessment must be written by a qualified health professional, though it may be in the form of a questionnaire.
If, after reviewing the assessment, the employer is unable to make a clear decision on your suitability for night work, you should be asked to have a follow-up medical examination.
You must give your express consent before the results of the health assessment are given to your employer, unless it says only that you are, or are not, suited to night work.
If the medical professional concludes that you are experiencing health problems linked to night work, your employer must, if possible, transfer you to a suitable day shift. This new shift can, though, be for less pay.
Pregnant workers come under additional regulations. If a woman works nights, and has a certificate from her GP or midwife showing it is necessary for her health and safety to avoid working nights, the employer should take her off nights for the period stated in the certificate.
The employer should also offer suitable alternative daytime work, on the same terms and conditions. If there is no suitable alternative day work, the woman should be suspended on full pay for as long as is needed to ensure her health and safety.
A pregnant woman should not be routinely forced to leave her night shift, risking disruption to her childcare arrangements and career progression, unless there is medical evidence from a doctor or midwife that this is necessary.