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Employment

Publish date

29 September 2022

Working Time Directive Claims

The Ministry of Justice produces regular statistics on the number of employment tribunal claims and breaks these down by type of claim.  It might surprise you that the type of claim that is consistently at number 1 or number 2 is working time claims (ignoring the ‘other’ category).

Working time claims will cover many different aspects of the Working Time Regulations 1998 (WTR).  This article consider the key rights granted to workers under the WTR and how those rights can be enforced.  We also include some actions points for employers to consider, to help your organisation avoid becoming another employment tribunal working time claim statistic.

Who is covered by the WTR?

The WTR applies to all ‘workers’, that is:
•    employees who work under a contract of employment; and
•    any other contract where the individual undertakes to perform personally any work for your organisation, save where they are genuinely pursuing a business on their own account, making your organisation a customer of their business.
Workers would cover agency workers and casual / zero hours workers.

Workers’ rights under the WTR.

The WTR provides basic rights to workers including:
–    5.6 weeks paid annual leave per annum;
–    an uninterrupted rest period of 11 hours in every 24-hour period;
–    24 hours of uninterrupted rest in every seven-day period (or 48 hours rest per fortnight);
–    a 20–minute break when working for a period of six hours or more per day;
–    a 48-hour maximum average working week;
–    in respect of night workers, to take all reasonable steps to ensure that such workers normal hours of work do not exceed eight hours per day on average; and
–    employer must maintain adequate records showing whether the limits on average working time, night work and provision of health and safety assessments are being complied with.

Exceptions

There are derogations from some of the above rights for certain types of roles, in recognition that not all roles are compatible with the entitlements to rest breaks.  These are known as ‘special case’ workers and include those involving security and surveillance work and where the worker’s activities involve the need for continuity of service or production, which could cover certain roles in hospitals, prisons, docks, airports, utilities and agriculture.

Opting out

A worker can agree to opt out of the 48 hour limit on average weekly working time.  Some employers offer this to all new joiners, irrespective of whether working more than 48 hours per week is expected.   The opt out must be terminable on three months’ notice.
Employers who recognise trade unions or have standing employee representatives can agree to modify certain parts of the WTR through ‘workforce agreements’.   These can modify the rest break requirements but not annual leave rights.

Enforcement by workers

Workers can bring an employment tribunal claim for a breach of their rights under WTR.  Workers will need to commence Acas early conciliation within three months of the breach complained of.
Where a clam for breach of WTR rights succeeds, the tribunal must make a declaration and may make an award of such compensation as is just and equitable in all the circumstances, having regard to the employer’s default and any economic loss sustained by the worker.

In holiday pay claims, the compensation will be holiday pay due.  For claims relating to rest periods, it is not easy to quantify the worker’s loss, if any.  What economic loss is suffered by not having the designated rest breaks?
Compensation for injury to feelings is not available.  Some claimants may seek personal injury damages where they suffered more than minor discomfort, perhaps where they have suffered musculoskeletal problems as a result.

Detriment or dismissal for exercising WTR rights

A worker can bring a claim if they have suffered any detriment on the grounds that they:
–    refused to enter into an agreement (e.g. an opt out) to vary or forgo a right under the WTR;
–    refused to work longer than the prescribed limits on working time;
–    refused to work when entitled to a rest period; or
–    brought a claim in good faith against their employer to enforce their rights under the WTR.

A claimant in a successful detriment claim can be awarded compensation for injury to feelings, making this avenue potentially more lucrative than a claim for breach of WTR rights.

It is automatically unfair to dismiss an employee for one of the examples of detriment listed above.  In contrast to most of the WTR rights, this claim is solely for employees.  Note that the employee does not need two years’ service before bringing this claim.

Key risk areas for employers

Most employers are familiar with the rest break entitlements set out above.  In our experience the risk of claims tends to come from those with less than typical working arrangements, such as:
•    time spent on-call.  Time spent on call may count as working time, even if not working.
•    travelling tine.  Is your organisation clear as to what time spent travelling does and does not count as working time?
•    overtime.  Paid overtime would normally count towards working time.  For unpaid overtime, it depends on how ‘voluntary’ it really is.
•    workers regularly working paid overtime.  It is likely that their holiday pay must reflect the overtime pay they would normally receive, not just basic pay.

If the above arrangements apply to some of your workers, we recommending assessing if are they getting the daily and weekly rest periods and whether they are working more than 48 hours per week when all working time is taken into account.

If you would like to further discuss any of the information detailed above, please contact a member of our Employment team.

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