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Cougar
The Working Time Regulations
These regulations give most workers the following rights:
a 48-hour limit on the maximum working week; workers may opt-out and work longer
a 48-hour limit on the maximum working week for night workers; no opt-out is possible
an eight-hour daily limit on night work involving hazards or physical or mental strains
free health checks for night workers
5.6 weeks’ paid leave a year
one day off per week
11 hours’ rest per day
a 20-minute break if working more than six hours a day.
https://www.tuc.org.uk/resource/working-time-breaks-and-holidays-know-your-rights
Answering that phone call at 2 am resets the clock by my understanding- you and your boss are then breaking the law if you do not get 11 hours rest after that - so 1pm is the earliest you can go into work
Again from memory - there is an exception for genuine emergencies ie the computers have all crashed and planes will fall out of the sky type stuff and also if there is a deadline to meet - but in both cases once the emergency or deadline is passed compensatory rest must be given
Hmmm
So I left the office last night at 21:00 ... back in this morning for 07:00.
That can happen once or even twice a week, most weeks.
Is that not on ?
Actually ... while I'm thinking about it .... what about when I'm taking clients out in the evening and then back in at 7am the next morning... guess that counts too ?
Nope - you cannot opt out of the 11 hour rest period
~As above if its an emergency or there is a deadline to meet then there is an exceptional circumstances clause IIRC - but compensatory rest must be given once the emergency has passed. From memory so the detail may not be 100%
Doing it regularly is illegal. No ifs or buts Yo must have your 11 hours off between shifts.
Edit - are you emergency services Ro5ey? ( I seem to remember you are and they have some differnt rules)
double edit - taking clients out in the evening is work usually so yes - that aplies as well
I’m actually a generous employer and buy them beer after a shoot, lend them gear
I'm surprised about your double standards wrt tobacco vs "gear". I would've thought the latter less conducive to work, but I suppose if it's after the shoot it's all well and good.
Nope – you cannot opt out of the 11 hour rest period
How does that apply to folk on-call? You finish work at 5:30pm, you get a 5-minute OOH call at 4am, so you can't legally go back into the office until 3pm the next day? What about taking subsequent calls?
I'm not saying you're wrong, I've not heard of this until you mentioned it, but that seems somewhat unlikely?
EDIT: I'm not seeing anything about "resetting" the rest time on that link you sent, it just says 11 hours per day. Ie, you cannot work more than 13 hours in a 24-hour period?
EDIT EDIT: The HSE does say "consecutive." https://www.hse.gov.uk/contact/faqs/workingtime.htm
Under the Working Time Regulations 1998, regulation 10, a worker is entitled to a rest period of 11 consecutive hours rest in each 24 hour period during which he works for his employer.
Aha, got it. From the actual legislation:
http://www.legislation.gov.uk/uksi/1998/1833/regulation/10/made
Daily rest
10.—(1) An adult worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer.
(2) Subject to paragraph (3), a young worker is entitled to a rest period of not less than twelve consecutive hours in each 24-hour period during which he works for his employer.
(3) The minimum rest period provided for in paragraph (2) may be interrupted in the case of activities involving periods of work that are split up over the day or of short duration.
... so under subsection (3), a quick phone call wouldn't count as resetting anything, no?
ON call works a bit differently depending if you are on site or not and I cannot remember the details. On call you should be paid for. I think you still need the 11 hours but without checking I am not sure
A quick check I am not certain at all when its on call from home ad all yo do is take a phone call but the 11 hours uninterupted rest seems to be pretty solid
If you are on call at work or have to remain in a specified location then on call time is working time adn and if you have to go in to work its working time and resets the clock on the 11 hours
Cross posting cougar
Answering a phone may be OK. going in to sort and issue certainly not. I guess its a "reasonable" situation. so getting woken at each end of your sleep ie 1 am and 5 am should trigger the 11 hours. a quick phone call at 10 pm maybe not
I don't do on cal nor does anyone I work with so its not something I am clear on and its a complex one relying on case law as much as statute
You have me interested in this now but I cannot find anything even in case law that is definitive on that ie on call at home, able to do what you want with your time and be wherever you want does not count as working time. Being called into work then does and resets the 11 hour clock but what happens if its just answering the phone ? Can't find anything definitive
Doesn't that legislation say you are ENTITLED to 11 hours rest, not that its compulsory. So its upto the individual if they take those 11 hours or not?
NOpe - its mandatory. YOu cannot opt out of it. that is very clear
Nope – you cannot opt out of the 11 hour rest period
but millions of people do.
in my industry that goes out the window. i have done 24 hr stints before or sat around from 9am to 11pm waiting for film crew to finish to start shooting stills (a days work).
film and TV is often unionised but sometimes has compulsory opt outs where you will not get the job unless you agree to work “12 for 10” though the overtime is often set to Bectu union rates and they have agreed rest periods. but for small productions what are you going to do? say no while everyone else gets up to shoot at dawn then has a break and shoots at sundown then up again at 4am for the next morning shoot? that mortgage needs to be paid.
that said, when i’m running the show i’m quite militant as i know productivity goes down the pan after 10 hours and would rather extract more production costs from client and carry on after a nights sleep.
i’m sure its the same for other industries like events or building stands at trade shows overnight then having to do a take-down and travel across countries to set up again.and lots of other industries that dont involve being sat in an office twiddling spreadsheets.
And if you do ... you are breaking the law ?
So as an individual you could be prosecuted ??
So as an individual you could be prosecuted ??
Yeah...by this guy....
Pretty sure TJ is correct. Clue is in the wording. ENTITLED to 11 hours UNINTERRUPTED rest.
I'm not sure how On Call effects this, however if you are expected to work on call (phone calls or go back to work premises) depending on the length of time this is ("5 min phone call, I'll go home 5mins early tomorrow is reasonable") you should have a company policy somewhere saying what you can do.
Eg. I am never 'on call' but nature of my job, electricity supply industry, I may get a call, to my work mobile, 24/7 365 days a year, by the standby man (who is on call and paid for it). I do not HAVE to answer, but if I do and I return to work (which I would as if MY phone goes I'll have to fix/investigate) Policy states that I can turn up to work late the next day, where appropriate (time of call, length of work etc) as 'sleeping in time' to ensure that while not uninterrupted, I am sufficiently rested if its a work day next day. If it is a non-work day next day, I am paid more overtime rate to reflect this.
Edit: fat fingers...
The opt out is for the 48hr average working week over the time period specified by your company, most use 17weeks.
NOpe – its mandatory. YOu cannot opt out of it. that is very clear
Where is it "very clear"?
Cougar - in the statue, in the case law, in all the advice for both employees and employers. NO doubt at all
As above there are some exceptional circumstances allowances but these are quite tight as well
Mr Smith - I think some of what you describe would be covered by the exceptional circumstances stuff - so is OK so long as you get the compensatory rest afterwards ie only get 6 hours off in one 24 hour period you must have 16 in the next 24 hour period
However - I have no reached the limits of my knowledge on this. Its getting into quite arcane areas and I cannot find any hard data on the various sites I use for advice
One thing that is clear is that the more employees allow employers to get away with it the more pressure will come on you to ignore the provisions. JOin a ruddy union! Hold on to your rights so they are not taken away. Of course once we are out of the EU the tories will remove these rights - they hae said as much
Ro5ey - I doubt an employee would be prosecuted. An employer is more likely to be but I think warnings and being told to sort your procedures out is likely to be first action
Cougar – in the statue, in the case law, in all the advice for both employees and employers. NO doubt at all
You're quite keen on things being absolute when they're not necessarily so! It's not clear to me at all, the legislation - certainly the short section I linked to anyway, I've not read the whole thing beyond a quick skim - just says "entitled." So an employer couldn't refuse the time off or coerce you into not taking it, but I've not yet seen anything that says you can't choose to take less rest time under your own volition.
Have you got a link to something that says that actually taking it is mandatory?
The piece and link I provided before state you can opt out of the 48 hr provision. the rest of the WTD there is no opt out.
There are exceptions for particular circumstances but not for general use.
These regulations give most workers the following rights:
a 48-hour limit on the maximum working week; workers may opt-out and work longer
a 48-hour limit on the maximum working week for night workers; no opt-out is possible
an eight-hour daily limit on night work involving hazards or physical or mental strains
free health checks for night workers
5.6 weeks’ paid leave a year
one day off per week
11 hours’ rest per day
a 20-minute break if working more than six hours a day.
From the TUC
Workers are entitled to a daily rest period of at least 11 consecutive hours in each 24-hour period during which they work. It is not necessary for the 11 hours to fall in the same calendar day provided that they are consecutive.
From an employment law specialist
The Working Time Regulations 1998 (SI 1998/1833) specify minimum rest break and daily and weekly rest period entitlements for adult workers aged 18 and over, and for young workers under the age of 18 but above compulsory school age.
Under the terms of a collective or workforce agreement, the right of adult workers to rest breaks and rest periods can be varied, so long as the employer undertakes to provide equivalent periods of compensatory rest. However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers can take their rest breaks.
https://www.xperthr.co.uk/faq/can-workers-opt-out-of-rest-breaks/92439/
The fact that I can’t “opt out” of my entitled rest periods just means my employer cannot contract me to work, or insist that I do, beyond what I am entitled to.
But I am an adult, and I can opt out if I choose to. I worked until 11pm last night at home dealing with emails from clients, and was in the office at 7.15 this morning, that’s not illegal, as it was purely my choice.
I opted out of having my 11 hours rest time because it suited me to do so.
the rest of the WTD there is no opt out.
There is no opt out for the entitlement. That doesn't mean you can't opt out of actually taking the break, that's not what it says. It's the entitlement which is mandatory, everything you've just posted there says an employer has to ensure that workers CAN take breaks, not that they MUST.
Like, I'm legally entitled to 20-odd days holiday per year. If I get to December and I've not taken them, does that mean I have to take the month off?
... and for the purposes of "arguing on the Internet" clarity, I'm not saying I think you're definitely wrong. I just don't think that from what you've posted so far it's as remotely clear or obvious as you're insisting it is from the way it's worded.
However, workers cannot opt out of statutory minimum rest entitlements
From the HR advisers to employers as above
And yes - you have to take your holidays - thats been tested in court. You cannot have them as pay instead.
Many employers and employees ignore the law but it is clear. Working time directive is mandatory bar the opt out that only the UK has on the 48 hour week. You cannot opt out of the other provisions of the WTD.
Cougar - the only opt out is for the 48 hour maximum. there is no opt out available for the 11 hour rest period ( bar some special circumstances and compensatory rest applies)
Sorrry Neal - that is in clear breach of the WTD
If you cannot opt out of it as is clear from the stuff I have posted then yes - you are breaking the law.
an opt out means yo have agreed to something. there is no provision to opt out of the 11 hour rest period.
this stuff is there to protect you and the general public.
Cougar - is this clear enough for you? I think I have already quoted it
Can workers opt out of rest breaks?
The Working Time Regulations 1998 (SI 1998/1833) specify minimum rest break and daily and weekly rest period entitlements for adult workers aged 18 and over, and for young workers under the age of 18 but above compulsory school age.
Under the terms of a collective or workforce agreement, the right of adult workers to rest breaks and rest periods can be varied, so long as the employer undertakes to provide equivalent periods of compensatory rest. However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers can take their rest breaks.
https://www.xperthr.co.uk/faq/can-workers-opt-out-of-rest-breaks/92439/
Your employees must be given at least 11 consecutive hours of daily rest and at least 24 hours of uninterrupted weekly rest every 7 days, over a reference period of 2 weeks.........................
.
.
.
.
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This opt-out only applies to the 48 hour limit, not to the other working time rules.
However, workers cannot opt out of statutory minimum rest entitlements
However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers can take their rest breaks.
And yes – you have to take your holidays – thats been tested in court. You cannot have them as pay instead.
At work I can buy or sell up to five days holiday days per year. I can carry over up to five into next year (though this might be affected if I buy / sell, I can't remember exactly). Any that I don't take beyond that are simply lost. I don't get just kicked out of the building for weeks, that'd be daft.
I mean, it's possible that my employer is breaking the law here but I highly doubt it.
Your employees must be given at least 11 consecutive hours of daily rest and at least 24 hours of uninterrupted weekly rest every 7 days, over a reference period of 2 weeks…………………….
Still doesn't say "must be taken," does it.
I take part in the on call service at work, if I get called out before midnight, I'm expected in at the normal start time the next day, 8 or 8:45am.
If the call goes over midnight, I get compensatory rest until 11am, if there's two calls after midnight, I get rest until 1pm.
So I could get called in until 11:55pm (after already doing a twelve hour day) and be expected in at 8am the next day.
I could get called and be out until 5am and be expected in at 11am.
To be clear, this does mean answering the phone and going into work for an hour (usually.) For some people this will involve a good hour of commuting as well.
Under AFC rules, compensatory rest actually comes out of our annual leave entitlement, but we are fortunate to have a local agreement in place that means this isn't the case.
This is NHS by the way.
However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers [b]can [/b]take their rest breaks.
My employer expects me to work 8 - 5 weekdays.
They have ensured I [b]can[/b] take my rest breaks.
I have chosen not to.
Which law is being broken and who is breaking it ?
Cougar - the european site quoted is very clear. NO opt out is available and rest MUST be given
Neal = Working time directive is being broken and you are both breaking it. Dunno what the actual statue is called. there is no opt out, you cannot chose to not take the 11 hours rest. Its mandatory ( with exceptions as outlined and compensatory rest is due)
OK - I am done with this and Cougar - as a mod you really should not be encouraging me to argue excessively 😉 ( unless you are trying to get me banned! BTW - is your surname Machiavelli?)
TJ, everything you've posted on this page is what the employer must offer, and a clause that says that an employee cannot choose to waive their rights (like, for instance, signing an employment contract which says they don't want it). No matter how often you copy and paste the same text there is nothing, anywhere, that I can see which says that an employee is obliged to exercise those rights if they don't want to.
You cannot chose to not take the 11 hours entitlement to rest, presumably to prevent being coerced into accepting unfair / potentially dangerous contract terms.
As a mod I couldn't give a toss about you arguing with me personally. (-: If we get a definitive answer then, well, it probably won't all be worth it but at least we'll know. Tell you what, I'll ask our HR bods tomorrow.
I think the quote from the EU site is pretty definitive. No opt out and must be given
If you do not take it you are opting out
If you do not take it you are opting out
I think that is where the issue lies.
Your misunderstanding of what “opting out” is.
In another job I opted out of the 48 hour max week. This involves signing forms etc. Saying i was opting out of my rights etc.
Those forms allowed my employer to contract me to work over 48 hours per week without breaking the law.
By choosing not to take the breaks offered to me by my employer, I’m not “opting out”
No employer can ask an employee to “opt out” of the 11 hour rest time and contract them to work shifts with shorter break periods.
This is what “no opt out option” means.
I can choose to work in my own time any number of additional hours I want without breaking any rules.
*slopes off for a fag*
Have you people never heard of the "sit down piss"?
Have you people never heard of the “sit down piss”?
How very uncouth.
In polite society we refer to a “China Cruise”
No Neal - its you that does not understand. 11 hours off is mandatory. Hence the use of MUST and No opt out
Still - if you think its right to let your employer take advantage of you thats up to you. However these regulations are here to protect us but if you do not want to be protected then I guess its up to you
there is no doubt at all tho that without that 11 hour break you are in breach of the WTD
This thread is making me want to start smoking again and I quit over twenty years ago.
11 hours off is mandatory
The ability to take 11 hours off is mandatory.
there is no doubt at all
... in your opinion.
Remember that 'binary' thing, TJ? You might well be right, but I don't know how else I can keep saying the same thing in slightly different ways for you to countenance the notion that you might not be.
This thread is making me want to start smoking again and I quit over twenty years ago.
I’ve never smoked even I’m considering it.
Because I have quoted the EU, HR experts, TUC, ACAS etc stating that is the position. If there is no opt out then you must have that rest time ( except in certain circumstances which do not apply to the vast majority)
Even if you do not for exigent circumstances have that 11 hour rest then you MUST have compensatory rest.
If there is no opt out then you must have that rest time
If there is no opt out then you must be allowed that rest time. Nothing you have quoted appears to be saying what you're asserting it's saying.
Actually, I'm going to step away from this for tonight. I get the impression I'm winding you up, and that's really not my intention. I'll check back in tomorrow.
If there is no opt out then you must have that rest time
There is no opt out, agreed.
This means employers can’t rota set working times that contravene the 11 hour rules, by asking employees to Formally opt out (as they can with the 48 working week)
Employees working extra hours by their own choice does not constitute “opting out” in the sense referred to in the regulations.
Opting out (as referred to in the regulation) is a formal written agreement that is available for the 48 hour max week. But not for the 11 hour break.
This means employers can’t rota set working times that contravene the 11 hour rules, by asking employees to Formally opt out (as they can with the 48 working week)
Yup that’s how we do it and late finishes mean they get 11 hours off so start late the next but are paid if they’d started on time.
We discourage anyone from breaking this rule but some are happy to come in for the sake of 30 minutes or so, the unions have never said they can’t just also discourage them.
Oh Christ now I’m involved.
I’ve never smoked even I’m considering it.
Same here, and I’m going straight onto Capstan lung rippers. Chained.
Spice anyone?
Hark at Perchy with his heirs and graces
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and a clause that says that an employee cannot choose to waive their rights (like, for instance, signing an employment contract which says they don’t want it). No matter how often you copy and paste the same text there is nothing, anywhere, that I can see which says that an employee is obliged to exercise those rights if they don’t want to.
Cougar, I think this is were the point lies, and isn't being explained very well.
If an employee works in a capacity that stops them having their entitled rest period, while not officially (as in forms, contracts etc) waiving their right, they are PRACTICALLY waiving their right (each and everytime they work like this). It isn't a blanket waiver, but a 'daily waiver' as it were. Its a Health and Safety issue, and so isn't just there to protect the employee, but also those who may be effected by said employee.
Can we have that CAPITALS guy back on? I prefer him to this WTD stuff.
Ok
One final post. This got me obsessed ( who me - don't ban me mods!)
The best I could find was that the employees do not have a legal obligation to take all their break time. However if they do not then the employer is open to claims for compensation if there is the slightest duress not to take them ie peer pressure, workload, artificial deadlines etc
A few recent legal decisions creating case law and advice from the attorney general have made this clearer so the latest advice to employers from employment law experts is to insist that the employees take their breaks in line with WTD as if they allow employees to work outside the WTD the employer could be liable for civil action even if the employee appeared to consent at the time. A part of this is its a health and safety issue ie if the employer accepts working practices that put the h&s of the employees at risk they are liable - similar to employees removing safety equipment
The effect of this is that the employer has a responsibility to ensure not only can breaks be taken but that they ARE taken.
I have not got the references to hand 'cos I closed the tabs and really I have wasted enough of my and others time on it.
I remain convinced that this was not the intention of the folk who drew up the WTD.
I had a problem guy once, team of 8 on an IT help desk.
Basically had a gentleman's agreement that they could take thier breaks whenever suited them as long as there were at least 2 people at the desk, or if a major incident was running then they don't take a break until things settle a bit(as TL I didn't really care who did what as long as there was sufficient cover.
One guy though would purposefully wander off at these times so I had to introduce a lunch rota on a whiteboard where the guys just pencilled in when they wanted lunch break.
That didn't go down too well with the whole team but they accepted it when it was pointed out that certain nameless individuals were forcing the situation. (I'd rather the team manage thier own time sensibly like grown ups, personally).
Then problem guy decided to complain above my head that I was forcing him to take lunch at certain times (which I absolutely could do, but this wasn't the case, I was just making them choose a lunch slot at the start of shift).
Then he started playing the line that I was forcing him to take a break full stop.
So I played the line that I'm not (and can't force him) to take a break but he would always have the opportunity to take proper breaks.
He then complained about my 3 or 4 x10min smoke breaks per day, so I had to spell out that I don't take a lunch break.
Never came to anything, Some people are just dicks.
One problem employee can realy be a pain, not so much in proving them wrong, but probably 20% of my time was taken up in doing so and ensuring the rest of the team were treated the same.
The effect of this is that the employer has a responsibility to ensure not only can breaks be taken but that they ARE taken.
Not sure how that would be practical, in the case of my problem guy, he was a big guy, body builder with an attitude to match.. I wasn't going to lock him out of the office for his breaks, all I could realistically do was provide a break window for him that he could choose, ot failing that stipulate his exact break times for him.
It's far easier of everyone's adult about it and it can flex both ways.
Yes that’s pretty much it TJ which is why we actively discourage it, that and having been the hero in the past it’s actually no good god for you at all.
Body builders aren't always that flexible
Our smoking breaks are from 11.30 till 11.44 and 1.20 till 2.10. Other than that there is an expectation they will come to class.
At work I can buy or sell up to five days holiday days per year. I can carry over up to five into next year (though this might be affected if I buy / sell, I can’t remember exactly). Any that I don’t take beyond that are simply lost.
Drifting off topic, we had the same, except that it was subject to taking at least 20 days off per year, or 28 if public holidays were included.