The Working Time Directive: Calculating time limits

The advent of flexible working post-COVID has blurred the lines between work and home life. Many of us are finding it harder to down laptops at finish time. But did you know there is a working time limit on the number of hours that staff can legally work?

Employers cannot force their employees to work an average of more than 48 hours per week. Working time regulations also set out further measures to protect employees, such as rest breaks and days off. A worker is entitled to a rest period of 11 uninterrupted hours between each working day and should be allowed one whole day off a week. These days off can be averaged over a two-week period, meaning workers can take two days off a fortnight.

The rules may sound quite simple, but some of the calculations can be a little complex. For example, how many employers would include some travelling time when they add up hours worked? Employers must carefully check what counts as working time.

Surprisingly, working time normally includes travelling where it is part of the job and job-related training, but does not normally include travelling between home and work and lunch breaks.

Small business employers asking their employers to be available on call to deal with emergencies, such as a website going offline, should be especially careful. A European Court of Justice judgement related to ‘on call’ time indicated that ‘on call’ time may be considered as working time when an employee is required to be at his place of work.

Although these rules may sound harsh, there is little need for employers to watch the clock every week and sit for hours with a calculator reckoning up total hours worked for each member of staff. The 48 hour limit does not mean that employers are not within their rights to ask an employee to work more than this weekly limit for one or a number of weeks.

This is because average weekly working time is normally calculated over a 17 week reference period. The average weekly working time is simply the average of hours worked each week over this reference period.

So what can employers who want to get the most out of their staff do? If an employer anticipates that they might need any of their staff to work more than the 48 hour working time limit, they should consider asking employees to sign an opt out agreement. By signing the opt out, a worker is agreeing not to exercise his right to limit his weekly working time to an average of 48 hours.

The employer and worker can agree how much notice is required to cancel this agreement and once again allow the worker the protection of the working time limit. This notice period can be as long as three months. If no notice period is agreed, employers could find their workers asking to regain protection in as little as seven days.

But the current regulations could be due to change. European Parliament called on the European Commission to end the UK’s individual opt out from the 48 hour average limit on the working week.

Critics of the current opt out agreement argue that the UK is the only European Union country that allows all employees to agree to work past the limit. The European Commission (EC) is now reviewing the implementation of the opt out. The review is likely to consider a number of possibilities for the future of the opt out, some of which may have serious implications for small business employers.

The good news for many small business employers is that the opt out is unlikely to be abolished completely overnight – although it remains a possibility. It is feasible that the review will preserve the status quo, but some employers fear that the opt out may be gradually phased out – perhaps being withdrawn from different sectors at different times.

The UK may be allowed to retain an amended opt out for use by all employers, or alternatively, a revised opt out may be permitted in certain industry sectors only. A new opt out could include, for example, an absolute limit to the number of weekly hours an employer can ask a worker to undertake.

Whatever the outcome of the review, it seems it could be time for change on working time limits.

Mark Thompson is the legal team leader at Associa Employment Service.