Working hours are regulated by the Working Time Regulations 1998. In particular, regulation 4 sets a limit on the maximum weekly working time of 48 hours. However, while the basic purpose of the regulations is to protect the health and safety of workers by limiting excessive working hours there are exceptions. Below, Jo Seery from Thompsons Solicitors answers some of the commonly asked questions around working time.

How are maximum working hours are calculated?

The limit of 48 hours per week is based on an average calculated over a 17 week reference period, or 26 weeks where workers activities involve the need for continuity of service or production. The average is worked out by dividing the total number of hours worked in the reference period by the number of weeks in the reference period. Periods of sick leave, maternity paternity and parental leave and holidays are excluded.

What is the duty on the employer?

Employers have a duty to ensure the average weekly limit of 48 hours is complied with. They must take reasonable steps to ensure that workers comply with the maximum limit. Where it is likely that the 48 hour limit will be exceeded, as it often is in the entertainment industry, the employer is expected to take more active measures, such as monitoring the amount of hours worked.

Although there is no remedy for a breach of the limit under the regulations, case law has held that the 48 hour weekly limit is an implied term in the contract of employment. This means that in the absence of a valid opt out agreement (see below) an employer who requires an employee to work in excess of 48 hours will be acting in breach of contact.

What is an “opt out”?

This is an express written agreement between the employer and the individual worker to dis-apply the maximum 48 hour limit. Generally, the opt out agreement should be separate from an employment contract so that it is clear that the individual has consented to work more than 48 hours a week, and has the ability to opt back in to the maximum 48 hour limit in the future. A clause in a contract, which stipulates that a worker agrees to work 50 hours a week or which states that the worker agrees to work such hours as may be required in accordance with the needs of the business, will not amount to a valid opt out.

It’s important to remember that the 48 hour limit does not apply where a worker has the freedom to determine how and when the work is done.

What are the options for a worker?

A worker who is dismissed for refusing to sign an opt out is entitled to bring a legal claim in an employment tribunal that they have been automatically unfairly dismissed. Similarly a worker who is subject to a detriment, for example, transferred to another job because they have refused to sign an opt out is entitled to bring a claim in an employment tribunal and claim compensation for injury to feelings.

Even where a worker signs an opt out in fear that they will not be offered the job, the employer has a duty of care to protect the health and safety of workers. Where working excessive hours puts a worker’s health and safety at risk, they may be able to resign and claim constructive dismissal or claim for damages if they suffer an injury as a result. Recent case law has held that an expectation to work overtime can amount to a provision, criterion or practice for the purposes of the Equality Act 2010. In this case, an employer may be liable for either a claim if the employer does not make a reasonable adjustment, or indirect discrimination where women are put at a particular disadvantage.

For more information about the laws around working time, read Thompsons Solicitors legal guide.