How do the Working Time Regulations 1998 apply to injury claims?

The Working Time Regulations 1998 place limits on the number of hours that an employee should work each week and define minimum rest periods between shifts.

Employers must take all reasonable steps to fulfil their legal duty of care to protect the health and safety of their employees. Employers are required to both comply with the regulations and keep records to demonstrate compliance.

Successful tiredness-related injury claims have been made in circumstances where an employer has breached their duty of care.

The Working Time Directive 1993

The Working Time Regulations 1998 implement the EU's Working Time Directive 1993. The regulations are split into 6 parts. Part 2 (entitled "Rights and obligations concerning working time") addresses employee rights and employer obligations concerning working time.

The legislation also includes specific provisions for night shift work.

What are the key provisions of the Working Time Regulations?

Working hours, rest and time off

According to Part 2 of the regulations, an adult worker (over 18):

• should not work for more than 48 hours a week (normally averaged over a 17 week period)
• is entitled to a rest period of not less than 11 consecutive hours in 24 hours
• is entitled to an uninterrupted rest period of not less than 24 hours a week - can be averaged over 2 weeks
• who works for more than 6 hours, is entitled to a rest break of no less than 20 minutes
• is entitled to a maximum of 28 days annual leave which:
  • can be taken with their employer's
  • the employee must be paid for
  • the employee must be compensated if the leave is not taken and they leave the company

What if I am under 18 years old?

Different limits apply to workers who are under 18 years old. Young workers are entitled to:

• 12 consecutive hours off in a 24 hour period
• 48 hours off work per week
• 30 minutes break after 4.5 hours work

Opting out of the 48 hour week

Adult workers can choose (with the agreement of their employer) to opt out of the 48 hour week. Opting out must be voluntary and in writing. An employer is entitled to ask you to opt out, but the employer cannot enforce it or threaten to dismiss you if you refuse.

There are certain roles where employees cannot opt out. These include:

• airline staff
• workers on ships or boats
• workers in the road transport industry (exceptions apply for certain driving jobs).

Night-work

Part 2 includes specific guidance for night workers who, due to unsociable hours, are presented with additional health risks. To comply with the regulations employers must ensure that:

• a night workers normal hours do not exceed an average of 8 hours for every 24 hours worked. (This is normally averaged over 17 weeks.)
• all potential night workers are given a free health assessment
• all night workers are given regular health assessments
• workers deemed unsuitable for night work are offered day work where possible

Night workers whose activities involve certain hazards, heavy physical activities or mental strain, should not exceed the 8 hours in 24 requirements.

Are the Working Time Regulations enforced?

The Health and Safety Executive (HSE) is the regulator that enforces the maximum weekly working time limit, night work limits and health assessments for night work. The HSE does not enforce time off, rest break entitlements or paid annual leave entitlements.

However, an employer must carefully assess the risk of not adhering to the rest periods stipulations set out in the regulations. Where work is monotonous, for example, leading to greater risk, an employer must ensure that emplyees take adequate breaks.

Do the time limits apply to all jobs and industries?

No. There are some instances in which the time limits set out in the Working Time Regulations do not apply:

• Where 24-hour staffing is required.
• The armed forces, emergency services or police force.
• Security and surveillance roles.
• Domestic servants in a private household.
• Seafarers, sea-fisherman or workers on vessels on inland waterways.
• Where working time is not measured and the worker is in control, e.g. a CEO.

Does travel time count as working time?

A European Court of Justice ruling in September 2015 clarified how the Working Time Regulations apply to certain mobile workers.

Travel time is not generally counted as working time unless it is actually part of the employee's work activity. An office worker's commute, for example, is not recognised as working time.

If a worker does not have a fixed office (e.g. a care worker who travels to patients' homes) then both the time spent travelling to the first job of the day, and the time spent travelling home after the last job of the day, do now count as working time.

Working time includes:

• any time to which a worker is at an employer's disposal.
• periods in which the worker is receiving training.
• any additional working period agreed beforehand.

Breaches of the Working Time Regulations and personal injury claims

If you have been injured in an accident at work that resulted from another employee's fatigue, or following a breach of your employer's duty of care, you may be able to claim compensation. A claim may also be possible if your tiredness contributed to the accident.

See also:

Can I make an injury claim against a work colleague?

Can I claim for an injury if partly to blame for an accident?

Tiredness-related injury claims

Work accidents Road accidents Public places Medical negligence Other accidents

Author:
Chris Salmon, Director

About the author

Chris Salmon is a co-founder and Director of Quittance Injury Claims. Chris has played key roles in the shaping and scaling of a number of legal services brands and is a regular commentator in the legal press.