In this blog, we will explore how the EU Working Time Directive impacts workforce management, what the regulations are and everything you need to know to remain compliant and avoid any potential fines.
What are the EU Working Time Regulations?
Also known as the Working Time Directive (WTD), it is officially called “Directive 2003/88/EC of the European Parliament and of the Council of 4th November 2003 concerning certain aspects of the organisation of working time”.
Are WTD regulations still current in the UK, or did they change after Brexit?
On the 1st of January 2021, when it left the European Union, the UK gained the power to make changes to employment law, including the Working Time Directive (WTD). However, as at the time of writing, no changes have been made, so the UK still complies with the WTD.
The WTD is implemented into UK law by the Working Time Regulations 1998
What are the key requirements of the Working Time Directive?
The WTD protects minimums and maximums on the employee’s work week, break times, holiday pay, and more. The often cited key projections are:
- 11 hours of continuous rest in every 24-hour period.
- Minimum of 20-minute break when shift exceeds 6 hours.
- Minimum of 24-hour rest every 7 days or minimum of 48-hour rest every 14 days.
- Minimum of 4 weeks paid annual leave.
These are the key requirements, but the WTD goes into more detail, including detailed rules for the protection of minors.
Can my Workforce Management tool help me comply with the Working Time Directive?
Yes. Your WFM provider should be able to explain exactly how the EU Working Time Directive impacts workforce management, and a modern, sophisticated workforce management system can help you stay compliant in several key areas:
- Ensuring the correct breaks between shifts both in a 24-hour period and on a weekly basis.
- Ensuring the correct breaks within shifts are taken.
- Applying the correct rules to adult and young (under 18) workers.
- Helping with the calculation of a “weeks pay” to ensure that 5.6 weeks of paid leave are taken. This is often called “holiday entitlement” in WFM systems and needs to be capable of dealing with multiple “entitlement pots” for different rates of pay, leave types and roles that the employee may perform.
- Maintaining records for WTD compliance.
- Reporting on any breaches.
WFM systems often have a compliance module that manages WTD and other labour regulations. It will highlight any shift that does not comply. Likewise, the end-of-day process within a WFM system should also highlight any changes to planned shifts which are likely to cause a breach. An excellent example of this is when a worker has an 11-hour gap between shifts scheduled and is asked to work overtime. The correct handling is to ask the worker to start later the next day.
WFM systems have either hard or soft stops to breaches. A hard stop prevents the shift from being scheduled in the first place, whilst a soft stop provides the user with an advisory warning.
Particular care should be taken when using “auto-scheduling” systems, which should always have a hard stop against creating a shift with a WTD breach. In order to achieve this, the auto-scheduling tool will need to look back over the previous week’s rotas to check the breaks between shifts.
Are any staff excluded from complying with the Working Time Directive?
Yes, employees in the transport industry, certain workers at sea, doctors in training and those engaged in certain civil protection activities and not covered. The WTD does not cover self-employed individuals who are in business on their own account.
What about the Working Week?
A worker’s average weekly working time, including overtime, must not exceed 48 hours, on average, over a period of 17 weeks. There is an exemption to this rule. An average period of 26 weeks can apply to the “special cases” category. This category is where there are objectives or technical reasons concerning the organisation of work and in these cases, the averaging period may be extended to a maximum of 52 weeks by a collective or workforce agreement.
Individuals can agree to be excluded from the maximum working week requirement on a voluntary basis. An employee opt-out can be ended by the worker giving notice of a least seven days.
What about Night Work?
Night work should not exceed 8 hours in each 24-hour period over a reference period of 17 weeks. Where the work involves special hazards or heavy physical strain, no averaging is allowed. In these circumstances, there is a ban on working more than 8 hours in any 24; you will need to do a risk assessment to identify this type of work. Provided compensatory rest is permitted or appropriate protection is given, the above rules on night working are excluded for “special cases” workers, an example of this is care home workers who sleep on site.
Workers are entitled to free health assessments at regular intervals if they are carrying out night work.
What records does an employer have to keep on WTD?
As an employer, you must keep records of weekly working hours, night work hours and compliance with health assessment requirements. Your Workforce Management Software should automate much of the record-keeping requirements.
What about rest periods and breaks between shifts?
Adult workers are entitled to a break of not less than 11 consecutive hours in each 24-hour period and a weekly break of at least 24 hours in each seven-day period. The weekly rest requirement under WTD may be averaged over two weeks. The regulations on adults’ rest periods do not apply to workers in the “special cases” group provided where compensatory rest is provided or appropriate protection is given. If shift workers cannot take their due rest between shifts or where work is split up over the day, also known as “split shifts”, the rules do not apply provided compensatory rest or appropriate protection is given.
What about rest periods and breaks during a shift?
Adult workers working in excess of six hours will be entitled to a rest break in accordance with terms in a collective or workforce agreement. Where there is no such agreement, a minimum break of 20 minutes is laid down. Exceptions are permitted for “special cases” and where collective or workforce agreements have been concluded.
What about rest periods and breaks for young workers between shifts?
Young workers are entitled to a daily rest period of 12 consecutive hours except in exceptional circumstances (these can be defined as “unexpected and unpredictable occurrences beyond an employer’s control”), where compensatory rest must be permitted within three weeks. Young workers are to be given a weekly rest period of two days, consecutive where possible, in each seven-day period.
This may be interrupted where work is split up or of short duration or reduced for technical reasons, but in any case, the weekly rest period must not go below 36 hours.
What about rest periods and breaks for young workers during shifts?
Young workers are entitled to a rest break of at least 30 minutes, consecutive if possible, after four and a half hours’ work, except in exceptional circumstances. In such cases, compensatory rest must be given within three weeks.
What about annual leave?
The UK Working Time Regulations provide workers with 5.6 weeks annual leave, and workers are entitled to be paid at the rate of a “week’s pay” for each week of leave, calculated in accordance with sections 221 to 224 of the Employment Rights Act 1996 (ERA 1996).
Leave and accruals are a complex issue and are covered in more detail elsewhere in another blog article.
How is the WTD enforced in the UK?
So far, we have covered the different regulations and to fully understand how the EU Working Time Directive impacts workforce management, we need to explore how it is enforced and the consequences of breaching it.
Where an employer has refused to permit a worker to exercise his or her rights under the regulations, they will be able to make a complaint to a tribunal. It is illegal to dismiss an employee on grounds connected with the application of the regulations.
In the UK the Health and Safety Executive or local authority inspectors are responsible for the enforcement of the following:
- Maximum weekly working time limit.
- Night work limits.
- Health assessments for night work.
HMRC National Minimum Wage Officers will take a keen interest in WTD and, in particular, breaks as many employers fall foul of NMW and WTD regulations by not complying properly with the WTD.
What are the consequences of breaching the WTD in the UK?
Penalties that can be imposed for breaching WTD include the following:
- A fine of up to the statutory maximum (on summary conviction) or a potentially unlimited fine (on indictment).
- “Improvement” or “prohibition” notices issued by Health and Safety Executive or local authority inspectors. If the business fails to comply with the notice:
- Potentially unlimited fines and up to two years imprisonment for directors on conviction on indictment can be imposed; or
- A fine of up to the statutory maximum and up to three months in prison on summary conviction can be imposed.
- Compensation for workers in an employment tribunal.
Related articles:
How does workforce management software help with compliance?
Why do I need time and attendance software?
