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Flexible Working Rights

We provide expert advice on flexible working rights and working time regulations, which govern the hours employees can work and entitlement to breaks, rest periods, and holidays. These regulations are designed to protect employees' health, safety, and well-being.

The Time

Working Time Regulations 

 

The Working Time Regulations ("WTR") were brought into UK Law in 1998 from European Legislation.   Under the WTR all workers in the UK have the right to a limitation on their working hours, as well as to periods of rest and paid annual leave.

 

Employer's are responsible for implementing the WTR rules to ensure the safety of workers is protected and to apply the following:-

  • To take all reasonable steps

  • To protect workers' health and safety

  • To ensure that each worker's average working time (including overtime) does not exceed 48 hours per week (regulation 4(1) and (2), WTR 1998)

  • For workers under 18, the maximum is 8 hours a day or 40 hours a week.

  • Workers are entitled to a break of 20 minutes if they are working for longer than six hours. However, in practice most employers often choose to give their staff longer and/or more frequent breaks.

  • Each worker should get 11 hours of rest each 24 hours or between working days.

  • Individuals are entitled to one day off each week or two consecutive days off in a fortnight.

  • A worker is allowed at least 5.6 weeks of annual leave per year (28 days for full-time employees).

  • For night workers, there is a limit on the normal working hours to an average of eight hours in any 24-hour period.

There are exceptions to the above that:-

  • Workers over the age of 18 have the right to work more than 48 hours a week if they choose to, by signing an opt-out agreement, it is illegal for employers to force their staff to sign this agreement, and the worker shouldn’t receive any negative treatment as a result of them refusing to do so.

  • Those employed in the armed services, emergency services or in security may have longer hours or different work patterns

 

Where holidays are concerned, it is not just employees who are entitled to the statutory amount of annual leave. Those workers on Zero hours contracts can also take a pro-rata amount of holidays based on the number of hours they work.

The impact of the WTR 1998 may vary depending on the type of work being done and the relevant contractual arrangements.   The following will normally be treated as working time:

  • Paid overtime and some unpaid overtime (unless it is purely voluntary in which case the worker is arguably not at the employer's disposal).

  • Time spent waiting or "on call" at the workplace (or at another place chosen by the employer), even if the worker is allowed to sleep.

  • Responding to telephone calls while on call (at any location).

  • Travelling to incidents while on call.

  • Travel time where travel is part of the job, such as travelling sales reps. This can include travelling to the first appointment of the day, and returning home from the last appointment of the day, for mobile workers.

  • Working lunches.

  • Work taken home at the request of the employer.

  • Attending work-related training.

  • Other time that is treated as "working time" under a relevant agreement.

The following activities will not normally be considered working time:

  • Rest breaks including lunch breaks and coffee breaks.

  • Daily and weekly rest periods.

  • Annual leave.

  • Time spent "on call" if the worker is not required to be at a particular place.

  • Travelling to the workplace, unless the travel is undertaken following "booking on" or reporting to an assigned depot or booking-on point.

  • Attending work-related social events.

  • Unpaid overtime undertaken voluntarily (as will be the case with many managers).

  • Attending evening classes or day-release classes that are not a requirement of the job.

  • Working from home voluntarily.

  • Responding to telephone calls voluntarily out of hours, including when travelling.

Flexible working

The right to request flexible working is available to all employees with at least 26 weeks' continuous service.  Only one application can be made within any 12 month period, and there is no automatic right to flexible working; although, the employer is only able to refuse a request for flexible working on certain grounds. 

In order to make a request the employee must submit a written request to their employer stating that it is an application made under the statutory procedure. The application must be dated, specify the change(s) that the employee is seeking and when the employee wishes it to take effect. The employee must also address any effects this change would have on the employer's business and how such issues could be dealt with. They should also state whether they have made an application before and, if so, when it was made.

The employer is under a duty to deal with any request in a reasonable manner, and to issue a decision within three months from the date of the application, that is, unless a longer period has been agreed.

If the employer decides to reject the application, it would be well advised, in its notification of the decision to the employee, to:

  1. state which of the above grounds apply, and

  2. explain, in the case of each ground cited, why it considers it applies.

Employers should follow the ACAS Code of Practice found here,  as far as possible when dealing with flexible working requests.  Employment Tribunals must take it into consideration when deciding whether a request was handled reasonably, what steps and procedures were followed.

The prescribed reasons where an employer can refuse a request to work flexibly are as follows:-

  • The burden of additional costs

  • The detrimental effect on ability to meet customer demand

  • The inability to re-organise work among existing staff

  • The inability to recruit additional staff

  • The detrimental impact on quality

  • The detrimental impact on performance

  • The insufficiency of work during the periods that the employee proposes to work

  • Planned structural changes.

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