Following the recent failure of attempts by the European Union to change the Working Time Directive, so as to make it unlawful to allow a person to work more than an average of 48 hours a week, the current Directive remains in force. This means that the opt-out from the 48-hour weekly working limit negotiated by the UK remains in place.
With many businesses trying to cut staff costs, now is a good time for employers to check that their efforts to cope in difficult economic circumstances do not mean that they are failing to comply with the laws relating to working time.
Under the Working Time Regulations 1998, which implement the European Working Time Directive into UK law, the general rule is that an employer must take all reasonable steps to ensure that the working time of any adult worker does not exceed an average of 48 hours for each seven days during a 17-week reference period.
However, if an individual worker is willing to work more than an average of 48 hours per week, this is allowed provided that this is evidenced by a signed opt-out agreement. The agreement must be revocable. A worker who does not wish to sign an opt-out agreement must not be subjected to any detriment as a result. For workers under 18, the maximum working week is 40 hours. These hours may not be averaged out and no opt-out from the weekly limit is available to young workers.
However, if no adult is available to do the work and the young worker’s training needs are not affected, he or she may work more than 40 hours if doing so is necessary to maintain continuity of service or production or in order to respond to a surge in customer demand.
The employer must keep an up-to-date list of adult workers who have agreed to work more than the 48 hours a week average and retain adequate records which show whether working time limits in general are being complied with. These must be kept for two years from the date they were made. There are additional record- keeping requirements relating to hours worked by young workers and where work involves special hazards or night work.
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