The Working Time Directive is a pivotal piece of legislation which enshrines the rights of UK employees to adequate breaks, rest periods, and holidays into law. However, a worker may wish to exercise their working time directive opt out rights, which preserves their right to a 48 hour cap on the working week.
This guide explores the process of opting out of the working time directive 48 hour working week limit, and the implications for your legal rights if you choose to do so.
What is the Working Time Directive?
The Working Time Directive is a set of rules which were established in 1993 by the European union. The WTD was enshrined in UK law in The Working Time Regulations (1998).
There are several key rights for employees in the UK provided by the Working Time Directive. However, when an employee opts out of the WTD it only removes the requirement to cap weekly working hours to an average of 48.
All the other aspects of the Working Time Directive are Statutory and you cannot opt out of them.
Maximum Weekly Working Hours
There’s a maximum limit for the number of hours to be worked each week. This is calculated using an average over a 17 week period.
Workers cannot work more than, on average, 48 hours per week. Exceeding maximum weekly working hours is a breach of the Working Time Directive. This can result in a fine for the employer unless the employee has opted out.
Hours worked within a second job also count towards the 48 hour weekly limit.
Daily Rest
Each employee is entitled to a rest break of 20 minutes when they work for 6 hours or more. Many employers will be more generous than this as they understand the significance of these rest breaks.
Breaks and lunch hours do not need to be paid and do not count as part of your daily working hours.
As well as these lawful rest breaks during the day, there are also rules to follow concerning rest hours between shifts. The rules stipulate that workers should receive 11 hours of rest between each working day.
Weekly Rest
UK employees should receive 24 hours of uninterrupted rest every week. Alternatively, they are entitled to 48 hours of uninterrupted rest every fortnight they work.
They can use this 48 hours as a solid amount or break it up into two separate breaks of 24 hours.
Your contract of employment may give more weekly rest breaks than the Working Time Directive sets out. Workers should check this with theirs. However, It should never be less than the minimum requirements.
Night Work
When you are considered a night worker you must work at least 3 hours of the accepted night period. This runs from 11 pm to 6 am unless previously agreed otherwise by both parties.
Night workers should not work more than 8 hours in 24. Again, this number is averaged out over 17 weeks. Sometimes the employer may calculate this average over 52 weeks instead. However, this must be mutually agreed on by both sides first.
This is not something that workers can opt out of and employers cannot ask them to do so.
Holiday Pay
Every UK worker is entitled to an annual holiday, regardless of the hours or contract type. The number of days each employee is entitled to will depend on a few factors.
Annual leave is calculated based on the number of days or hours you work. When you begin a new job, you begin to accrue holiday, regardless if you are on a probationary period or not. This is also the case if you are on sick leave, dependency leave or maternity and paternity leave.
Workers should receive the statutory minimum of 5.6 weeks per year. Part time workers have their holiday entitlement calculated based on hours worked.
Opting Out of The Working Time Directive
Employees have the right to opt out of the Working Time Directive and work beyond the 48 hour work week limit should they wish to. They must give their written consent for this.
Opting out can be reversed if you change your mind about working in excess of the 48 hour weekly limit. You should not be unfairly treated by your employer if you decide to opt back in.
How to Opt Out
When an employee agrees to opt out of the WTD, they must do so in writing. The document should clearly state your agreement to work beyond the 48 hour limit.
It should be signed and dated and should also mention the notice period you need to give your employer to end the agreement.
Some workers discover their contract of employment contains a default opt out agreement. This is why reading the contract thoroughly, before signing, is essential. Generally speaking though, workers will be asked to sign a written agreement which shows mutual consent to opt out.
Workers Who Can’t Opt Out
In the UK, some workers are not able to opt out of the Working Time Directive. This is due to legal reasons and, therefore, must stick to the legislation.
The following workers cannot opt out:-
- Airline staff
- Road transport
- Ship and boat workers.
- Other forms of transport which are governed by EU rules.
- Security staff on board a vehicle with valuable goods.
Exempt Workers
There are also some workers who are exempt from the WTD. This means they can work more than the 48 hour weekly limit without opting out.
Below is a list of occupations where you may be required to work more than 48 hours per week:
- When a business requires round the clock staffing.
- Security and surveillance.
- Domestic staff,
- Executives who are in control of their hours.
- Armed forces.
- Emergency services
- Police.
- Fisherman on inland waterways.
How to Revoke an Opt Out Agreement
Should you decide that the additional hours are no longer working out for you, it is your right to revoke an opt out agreement. How you go about this will depend on how you agreed to opt out.
Contractual Opt Out Agreement
If the opting out was part of your ongoing contract then you must give at least 7 days notice to cancel. Even if this has been included in a contract, an employer cannot force you to work longer than the WTR. Likewise, they also cannot force you to opt out of the agreement.
The opting out process applies solely to working hours. You cannot opt out of statutory breaks and paid leave as these are statutory employment rights.
Written Opt Out Agreement
If the opt out agreement was reached using a signed form then you may need to give a longer notice period.
Sometimes this can be up to 3 months but should be stated in the terms of the opt out agreement. You should note that it cannot be longer than 3 months or less than 7 days. You cannot be disciplined if you wish to revoke your opt out agreement.
Should You Opt Out of The Working Time Directive?
If you’re being asked to opt out of the maximum weekly working hours cap, it is something to carefully consider. It is your right to refuse to opt out, or to change your mind if you previously agreed to do so.
Here’s a few things to consider when making your decision:-
- Health and Wellbeing – Working long hours can contribute to poor mental health. Stress, lack of sleep, and reduced free time can affect your wellbeing.
- Work Life Balance – working more than 48 hours a week, even if not on a regular basis, limits your time to relax and decompress.
- Productivity at Work – working longer hours does not necessarily mean getting more work done. Being overstretched can reduce overall quality. It’s vital to understand your personal limits.
- Career Progression – If you’re under pressure to constantly work more than the 48 hour maximum in order to achieve faster career progression, it may be a sign of an unhealthy work culture.
You can refuse to opt out of the WTD and instead choose to preserve your work life balance.
Your Rights If You Don’t Wish to Opt Out of The Working Time Directive
Where do employees stand if they do not wish to opt out of the Working Time Directive?
You cannot be discriminated against for refusing to opt out of the Working Time Directive. This means the employer cannot sack, discipline, or disadvantage you on these grounds. To do so may be a breach of contract and the employee could take the company to an employment tribunal.
Those under 18 years old have a different set of working hours rules to follow and are not part of the 48 hour rule.
What Working Hours Aren’t Included in the Working Week?
It is essential that employees understand what hours are included in the working week. This helps them to accurately calculate their average working hours per week.
Let’s first consider what constitutes at the working week:
- Any travelling that forms part of your job.
- Training related to the job.
- Business meals
- On call and on site.
- Any time abroad for work.
- Business calls
- Any paid overtime.
- Any overtime that is unpaid that you have been asked to do.
- When there is no fixed workplace, travel time counts.
Now let us look at the scenarios where working hours do not count in the working week:
- Being on call when it is off site.
- Holiday leave
- Statutory daily rest breaks e.g lunch.
- Unpaid overtime you weren’t asked to do.
- Travelling to a fixed palace of work.
Further Reading: UK Gov Maximum Weekly Working Hours.
FAQs
This is a decision you need to make based on your set of circumstances. It can be useful if you wish to earn more money. Your boss may also be grateful for the additional flexibility it will offer. This agreement should be written up and you should be clear on how to revoke the agreement.
You cannot be forced to opt out of the working time directive. You cannot be dismissed or treated unfairly if you wish to stick to the 48 working hours per week.
