Christmas and working time

What should an employer consider when faced with an individual asking to take on more hours or work a second job?

For many Christmas is a time to spend time with friends and loved ones and take a well-deserved break from work.

However for others Christmas is a time of great financial worry with individuals looking to maximise their earnings by working overtime or seeking a second job.

In this article we are reminded of the Working Time Regulations 1998 (“WTR”) and the maximum 48 hour working week on workers looking to work additional hours.

A reminder of the 48 hour working week

The overall objective of the Working Time Directive and the WTR 1998 is to protect the health and safety of workers. Employers are under a duty to ensure they always uphold this by complying with the provisions of the WTR 1998.

The WTR 1998 states that a worker should not work more than 48 hours a week. This is averaged over a 17-week reference period. Therefore, an employer could be in breach of this if they are aware that the worker’s combined working hours (over two jobs if the individual has two jobs) are regularly more than 48 hours. Don’t forget too that seasonal overtime could increase hours over the 48 hour weekly average.

An employer can limit the risks of exceeding the 48 hour working week by asking workers to opt-out of the maximum working week limit. This is often seen as part of the employment contract or, more advisably, in a separate opt-out agreement. To opt-out of the 48 hour working week the opt-out agreement should:

• be in writing and given to each individual worker;
• clearly state that they are agreeing to opt-out of the maximum working week; and
• give the option to the worker to opt back in to the maximum working week by providing reasonable notice.

Weekly rest periods

The WTR 1998 also requires that individuals receive rest periods of either 24 hours in a 7-day period or 48 hours in a 14-day period. Workers are entitled to these rest periods but are not required to take them.

An employer’s responsibility in relation to rest periods is not without its limits. It will depend on what is reasonable from the employer as to when and how rest breaks can be taken either in the working day or across the working week. Normally it would be excessive or impossible for an employer to demand that workers take rest periods. It would also be impossible for an employer to have visibility over whether a worker was having weekly rest in accordance with the WTR where they worked multiple jobs.

Practical considerations

• Employers could seek to limit risks of breaching the provisions of the WTR by having clauses in worker’s contracts. This could include a clause preventing workers working elsewhere without prior written permission from the employer (and preventing them working where it could pose a conflict of interest).
• Employers could seek to include provisions relating to opting out of the maximum working week if the contract is signed. However, there is a risk that the worker later suggests they only agreed to the opt-out to get the job. This is why it is advisable to have the opt-out agreement apart from or separate to the contract.
• Employers may also wish to state the requirement for workers to observe weekly rest periods in the contract so they are aware of this right.
• Whilst it is not clear how far the responsibility extends to employers to comply with all requirements of the WTR 1998 such as rest breaks or weekly rest when the worker works multiple jobs, they must ensure they protect their workers health and safety as far as possible. Employers should therefore be cautious of allowing workers to undertake a second job, especially where this could impact on the worker’s performance in their main role or where there could be a risk of the worker not receiving adequate rest. Employers, should ensure, if they do allow workers to work elsewhere, that they monitor worker’s wellbeing and performance when at work and take necessary steps including decreasing the hours worked if necessary or putting in place planned time off work to allow the worker to rest.

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