Your employees don’t have to work for more than 48 hours a week on average unless they want to. But what if your employees are happy to opt out of these rights? Read on to see how it can be done.

The weekly maximum working hours

Normal working hours should be set out in the employment contract or written statement of employment particulars. Adult workers (over 18) can’t be forced to work more than an average 48-hour week. They can work more than 48 hours in one week as long as on average over 17 weeks it’s less than 48 hours per week.

An employee’s working week isn’t covered by the working time limits if they have a job:

  • where they can choose freely how long they will work (e.g. managing executive);
  • in the armed forces, emergency services and police (in some circumstances);
  • as a domestic servant in a private house;
  • as a sea transport worker, a mobile worker in inland waterways or a lake transport worker on board seagoing fishing vessels.

Since 1 August 2009 the 48-hour maximum working hours apply to trainee doctors. The hours are averaged over a 26-week period.

Opting out of the 48-hour week

If an employee (over 18) wants to work more than 48 hours a week, then they can opt out of the 48-hour limit. This is voluntary and must be in writing. It can’t be an agreement with the whole workforce, but employers are allowed to ask individual workers if they’d like to opt out. The only way to ensure that an employee has opted out of the 48-hour limit is to get it in writing. You can ensure this is done legally by downloading Lawpack’s Working Time Regulations 48-hour Opt out Agreement.

There are a number of employees who can’t opt out. They are workers such as airline staff or workers who operate vehicles (e.g. delivery drivers and bus conductors).

An employee can’t be sacked or unfairly treated (e.g. refused promotion or overtime) for refusing to sign an opt-out. If an employee refuses to sign an opt-out agreement and is dismissed, that dismissal is automatically unfair, no matter how long they have worked for.

An employee can cancel their opt-out agreement whenever they want, even if it’s part of their employment contract. They just need to give their employer seven days’ notice. This notice could be up to three months if the employee agrees this with their employer in the written opt-out agreement.

What counts as ‘working hours’?

As well as carrying out their normal duties, an employee’s working week includes:

  • job-related training;
  • job-related travelling time (e.g. as a sales rep);
  • working lunches (e.g. business lunches);
  • time spent working abroad, if the employee works for a UK-based company;
  • paid and some unpaid overtime;
  • time spent on-call at the workplace.

What doesn’t count as ‘working hours’?

An employee’s working week doesn’t include:

  • breaks when no work is done (e.g. lunch breaks);
  • normal travel to and from work;
  • time when they are on-call away from the workplace;
  • evening and day-release classes not related to work;
  • travelling outside of normal working hours;
  • unpaid overtime that they have volunteered for (e.g. staying late to finish something off);
  • paid or unpaid holiday.

What happens if, as an employer, I don’t ensure my staff observe a 48-hour working week?

There are penalties from the Health & Safety Executive and your local authority which include prosecution and fines. In addition, your employee can take action through the civil courts.

Help from Lawpack

This article has been adapted from Lawpack’s Small Business Handbook, a comprehensive guide to running your business efficiently and packed with business management tips and templates.

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

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