The Working Time Regulations 1998 (“WTR”) provide some important rights for all workers in the UK (apart from the genuinely self-employed who are working on a business-client basis, and certain narrow categories of workers who are exempt from some provisions).
All workers are entitled to 5.6 weeks statutory holiday (inclusive of Bank Holidays), regardless of their length of service. Employers are permitted, however, to require a worker either not to take holiday at a particular time, or to take it at a particular time provided that they give sufficient notice (which will depend on the length of the holiday). Workers need to be able to exercise their right to take holiday, although employers do not have to insist that it is taken. A payment in lieu of statutory holiday can only be made on termination of employment.
Payment for statutory holiday should be made at the time that holiday is taken. This does give rise to practical issues in certain cases, and rolled up holiday pay is still quite common. If a worker has received rolled up holiday pay where there was genuinely an additional and quantifiable element for holiday it is likely to be difficult for the worker to establish any loss. Payment should be made at the worker’s normal rate of pay, which in some cases could include overtime and commission.
Statutory holiday should normally be taken in the year in which it was accrued. Workers should, however, be allowed to carry it forward if they have been unable to take it (for instance because they were sick). Workers may choose to take holiday when they are signed off work sick but their employer cannot insist that they do so.
Any additional holiday above the statutory entitlement that an employer chooses to provide will be governed only by the terms of the contract.
Other protections under the WTR
- The maximum of 48 working hours a week on average over a 17 week period. A worker may opt out of this limit in writing. If they do so they are entitled to revoke that opt out on 3 months notice
- The entitlement to a 20 minute rest break when working for more than 6 hours
- The entitlement to daily rest of 11 uninterrupted hours and weekly rest of 24 uninterrupted hours (or 48 hours every fortnight) These entitlements may be deferred in certain cases if compensatory rest is given
- Special protections for night workers and young workers
In order to apply much of the WTR it is necessary to be clear about when a worker is working. There have been numerous cases about how workers should be treated who are “on call”. Generally, a worker will be considered to be working for the purposes of the WTR if they are on call at or near a place of work. (It should be noted, however, that a narrower test will be applied in establishing if a worker is working for the purposes of receiving National Minimum Wage.) Time when a worker is working - even if they are carrying out a sleeping on call duty – therefore counts towards the maximum weekly hours and does not count towards rest of any kind.
A worker who raises a concern about breach of any obligation under the WTR, or refuses to give up their WTR rights is protected from detriment from their employer on those grounds. If an employee is dismissed for asserting their rights under the WTR or refusing to forego those rights, that is an automatically unfair dismissal and the qualifying period of two years’ service is not required to bring an unfair dismissal claim.
Posted on 13/07/2016 in Legal UpdatesBack to Knowledge