Working Time Regulations
specimen documents by Roderick Ramage, solicitor, www.law-office.co.uk
first published in New Law Journal (firstname.lastname@example.org) on 21 August 1998 and in Kelly's Draftsman (17th edition) published by Butterworths in December 1998
This article is not advice to any person and may not be taken as a definitive statement of the law in general or in any particular case. The author does not accept any responsibility for anything that any person does or does not do as a result of reading it.
The Working Time Regulations 1998, SI 1988/1833, came into force on 1 October 1998, implementing the Working Time Directive (Council Directive 93/104/EC) and the Young Worker’s Directive (Council Directive 93/33/EC), and impose limits on workers’ working time. Unlike most elements of the statutory employment protection law (unfair dismissal etc), but (more or less) in common with health and safely at work law, which is the area in which these regulations operate, they apply to workers, whether or not they are employees in the strict "master and servant" sense of the word. The following are, as indicative precedents, specimens of the kind of documents envisaged by the regulations, which will need to be drafted to suit the circumstances of each case. They first appeared in New Law Journal on 21 August 1998.
1 agreement to disapply the 48-hour maximum working week1
registered in England and Wales under company number [number] whose registered office is at [address] ("the Company")
48-hour working week
The Working Time Regulations 1988 provide that the average working time including overtime does not exceed 48 hours for each seven-day period. The Company and the Employee agree that this limit shall not apply to the Employee. [insert alternative limit or other arrangement, if any] This agreement will remain in force [for a period of [one year] (or) indefinitely]. The Employee [or the Company] may terminate this agreement at any time by giving not less than [three months] written notice to the [Company (or) the other].
signed on behalf of [name] Limited/plc
signed by [employee]
1 This agreement is made under reg 4(3) between the employer and the individual worker. There is no need for a relevant agreement, or a collective or workplace agreement, but nothing prevents this disapplication from being dealt with by one of these agreements.
2 "Employee" is the expression more usually used in employment documents and will usually be appropriate, but the regulations use "worker".
2 workforce agreement1
The Working Time Regulations 1998
registered in England and Wales under company number [number] whose registered office is at [address] ("the Company")
1 The commencement date of this agreement is [date].
2 This agreement applies to all the employees of the Company [except those whose terms and conditions of employment are provided for wholly or in part in a collective agreement/the following collective agreements [particulars]].
3 The topics in the Working Time Regulations which are dealt with in this agreement are set out in the attached schedules.
[4 This agreement will remain in force until [[date not more than five years after the commencement date] when it will cease to have effect.]
signed on behalf of the Company
signed by a majority of the relevant employees
signed by the following duly elected representative of the relevant employees
schedule  - length of night time2 [reg 2(1) definition of "night time"] [NB this may be in any other relevant agreement]
Night time means from [10pm to the following 5am (or) midnight to the following 7am].
Night time means  hours from [9pm to the following 5am (or) midnight to the following 8am].
schedule  - night work as a proportion of annual hours [reg 2.1 definition of "night worker"]
The Regulations provide that a night worker is a worker who as a normal course works at least three hours of his daily working time during night time. It is agreed that this definition of night worker will not apply. In [place of (or) addition to] it, a night worker shall be any worker who [formula of description of proportion of annual hours likely to be worked during night time]
schedule  - definition of working time [reg 2.1 definition or "working time"] [NB this may be in any other relevant agreement]
In addition to time which a worker "is working at his employer's disposal and carrying out his activity or duties" the following will be included in working time:
schedule  - reference period3 [regs 4(3)(a) and 6(3)(a)] [NB this may be in any other relevant agreement]
The reference periods for the calculation of average weekly hours and night workers’ average normal hours shall be consecutive periods of 17 weeks, each starting immediately on the end of the previous period and the first starting on [1 October 1998 (or) the commencement date of this agreement]. No reference period shall start on the date on which a worker starts work unless it is a 1 October.
The reference period for the calculation of average weekly hours and night workers’ average normal hours shall be a moving period of 17 weeks ending on every [Sunday].
The first reference period for the calculation of average weekly hours and night workers’ average normal hours shall be the period of 17 weeks starting on [1 October 1998 (or) the commencement date of this agreement].. Thereafter the reference period shall be consecutive periods of 17 weeks of which the first starts on the first Monday after the Christmas and New Year holiday period. [note: this leaves 8 days out of the year (17 x 7 x 3 = 357 days, which it may be possible to ignore if they fall conveniently in the Christmas and New Year holiday period]
In each year there shall be four overlapping reference periods of 17 weeks each for the calculation of average weekly hours and night workers’ average normal hours as follows:
Whenever two reference period overlap, all calculations shall be based on the longest of the two periods.
schedule  - night workers’ average normal hours4 [reg 6(1),(2)]
A night workers average normal hours may exceed 8 in every 24 hours. [If the limit is not simply disapplied but is replaced, set out alternative arrangements]
schedule  - night workers’ hours, special hazard or heavy strain5 [reg 6(7)]
A night workers hours may exceed 8 in every 24 hours notwithstanding that the work involves special hazards or heavy physical or mental strain. [If the limit is not simply disapplied but is replaced, set out alternative arrangements]
schedule  - night workers, special hazard or heavy strain [reg 6(7)]
For the purposes of the Regulations relating to night work, "special hazards and heavy physical or mental strain will be identified as follows. [Definition or method of identification]
schedule  - daily rest period6 [reg 10(1)]
There shall be no set daily rest period for adult workers. [If the limit is not simply disapplied but is replaced, set out alternative arrangements]
The daily rest period for adult workers [shall be not less than [number] hours which] need not be consecutive.
schedule  - weekly rest period7 [reg 11(1),(2)]
There shall be no set weekly rest period for adult workers. [If the limit is not simply disapplied but is replaced, set out alternative arrangements]
The weekly rest period for adult workers [shall be not less than [number] hours which] need not be uninterrupted.
schedule  - rest breaks during daily working time8 [reg 12(1)]
There shall be no set rest breaks during daily working times for adult workers. [If the limit is not simply disapplied but is replaced, set out alternative arrangements]
Adult workers will be entitled to two rest breaks of  minutes if their daily working time exceeds six hours to be taken at times to be [posted on the notice board (or) agreed daily by each department supervisor].
schedule  - annual leave9 [regs 13, 14 and 15] [NB this may be in any other relevant agreement]
The start date for the holiday year shall be [date].
The amount of holiday pay in lieu of holidays at end of employment shall be calculated as follows.
(a) If, when the worker's employment is terminated, the number of days of main holidays which he or she has taken in the relevant year differs from his or her entitlement (calculated at [1.25] days for each complete month of employment in the holiday year), then, a payment for the number of days' difference will be either paid to him or her or refunded by him or her, depending whether the amount actually taken is less or greater than his or her entitlement. The amount paid or refunded will be the number of days difference multiplied by the daily equivalent of the worker's annual basic salary (on the basis of [240 (or) 365] days a year).
(b) The worker will not be entitled to a payment under sub-paragraph (a) if the Company is entitled to and does terminate his or her employment summarily or if he or she refuses to take any holiday entitlement during his or her notice period.
The amount of holiday pay in lieu of holidays at end of employment shall be calculated in accordance with each worker’s contract.
1 A workforce agreement is a means of disapplying some of the provisions of the Working Time Regulations. The conditions for a workforce agreement are contained in Schedule 1 to the Working Time Regulations. Each of the matters capable of being dealt with by a workforce agreement are dealt with in a separate schedule in this precedent. All these matters may also be dealt with by a collective agreement. A workforce agreement maybe made only for workers, whose terms and conditions are not provided for, wholly or in part, by a collective agreement. In addition certain matters may also be dealt by a relevant agreement, as indicated where applicable in the schedules to this precedent. A relevant agreement is defined in reg 2 as a workforce agreement, a collective agreement "or any other agreement in writing which is legally enforceable as between the worker and his employer." The matters, which are not so indicated can be dealt with only by a workforce or collective agreement.
2 The default night time is from 11 pm to 6 am: reg 2(1).
3 The default reference periods for the calculation of average weekly hours and night workers’ average normal hours are any periods of 17 weeks: regs 4(3)(b) and 5(3)(b).
4 The default night hours are eight in each 24 hours averaged over the reference period (normally 17 weeks): reg 6(1).
5 The default night hours in these circumstances are eight in each 24 hours and averaging is not allowed.
6 The default daily rest period for adults is eleven consecutive hours in every 24 hours: reg 10(1).
7 The default weekly rest periods are an uninterrupted 24 hours in each seven-day period or two 24-hour periods or one 48-hour period in each 14-day period: reg 11(1), (2).
8 The default rest breaks for adult workers are 20 minutes uninterrupted and if possible away form the workstation if the daily working time is over six hours.
9 The minimum of three weeks paid holiday, rising to four weeks from 23 November 1999 cannot be disapplied. Only (broadly speaking) the holiday year, the timing of holiday and the calculation of pay in lieu of holiday on the termination of employment can be disapplied. The default holiday year is each year starting on 1 October 1998 or, if later, the date on which the worker starts employment: reg 13(3)(b). The default formula for pay in lieu of holiday is a time apportionment according to the formula in reg 14(3). In default of agreement on the times when holidays are taken, the notice procedure in precedent 3 will apply.
3 notices relating to holiday dates
1 by worker to employer1
I will take [one week (or) [two (or) three] weeks]] holiday starting on [date] and ending on [date].
I will take one [half] day’s holiday on [date] [in the morning].
2 by employer to worker2
We require you to take [one week of your holiday in the period starting on [date] and ending on [date] (or) your three weeks holiday entitlement on the following dates: one week from [date] to [date] and two weeks from date to [date]].
No holidays may be taken in the period from [date] to [date] or the period from [date] to [date].
We have received your election of your holiday dates (for one week from [date] to [date]) which are not acceptable [because of [reasons]]. We regret therefore that you may not take your holiday between those dates.
1 The notice by the worker must be in writing and be given to the employer in advance of the first date in it by twice as many days as the number of days or part days of holiday intended to be taken. The worker will be entitled to take the holiday on the dates elected by him, unless the employer has exercised its rights to specify when the worker may or may not take his holiday. See reg 14.
2 The notice by the employer must be in writing be and given to the worker in advance of the first date in it by at least the number of days or part days of the intended holiday. The employer’s notice will not override a notice given by the worker, unless it is given to him either on or before the date of the worker’s notice or within the following seven days. See reg 14.
4 compromise agreements1
[Include the following paragraph in a "normal" compromise agreement]
x You agree to refrain from instituting or continuing before an Industrial Tribunal your complaint against the Company in respect of your allegation that the Company has [refused to permit you to exercise a right under regulation [number - see reg 30(1)] of the Working Time Regulations 1998 (or) subjected you to a detriment under s 45A of the Employment Rights Act 1996 (or) dismissed you unfairly for a reason specified in s 101A of the Employment Rights Act 1996]. The complaint to which this agreement relates [arose out of the following facts (or) is the complaint in your application to an industrial tribunal in case [number]].
[Sufficient facts to identify particular complaint]
1 Reg 35 prohibits contracting out of the provisions of the Working Time Regulations (except as expressly permitted) but in reg 35(3) provides for a compromise agreement. The basic principles are the same as for unfair dismissal and other employment protection rights (see Kelly's Draftsman, precedent [31-489]. It seems that the parties cannot use a compromise agreement (or ACAS conciliation) to contract generally out of any of the limits or obligations in the regulations, because it must "relate to the particular complaint". However, where an employee has a complaint on which he is entitled to take proceedings against the employer in an Employment Tribunal under the regulations, he can by a compromise agreement (or ACAS conciliation) agree to refrain from instituting or continuing proceedings. Therefore to this limited extent the parties may contract out of the limits or obligations in the regulations.
copyright Roderick Ramage
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