- The Working Time Regulations (WTR) grant rights to workers from day one of employment.
- There are, however, a range of flexibilities, derogations and exclusions, which can either modify the application of these rights or in some circumstances exclude them altogether.
- The WTR apply to young workers, defined as those who are under age 18, but are above compulsory school leaving age. The Regulations do not apply to school children, as they are dealt with under separate legislation.
- Under the WTR, a worker's working time, including overtime, in any reference period should not exceed an average of 48 hours for each seven days.
- In the case of young workers, their working time must not exceed eight hours a day or 40 hours a week.
- An employer is under a duty to take all reasonable steps to ensure that the 48-hour average weekly working time limit is not being exceeded.
- An adult worker can opt out of the 48-hour maximum working week, but the agreement to opt out must be in writing and must be agreed by both parties.
- A night worker is defined as someone who, as a normal course, works at least three hours of their daily working time during night time, or is likely to work during night time for such proportion of their working time as may be specified in a collective or workforce agreement. Special rules apply to these workers.
- Employers are under a duty to ensure that, in principle, young workers do not work at all during restricted periods.
- Adult workers are entitled to a minimum rest period of 11 consecutive hours in each 24-hour period.
- Adult workers are entitled to a minimum uninterrupted 20-minute rest break during the working day if it is more than six hours, and are entitled in principle to spend this break uninterrupted and away from their workstation.
- Workers covered by the Working Time Regulations are entitled to 5.6 weeks’ paid holiday leave each year.
10 November 2023
The government has announced it will remove the effects of ECJ case law that required more stringent records to be kept of daily working hours. Once implemented, employers will need to keep adequate records, as is currently prescribed in legislation.
Guidance on the Working Time Regulations will be re-published, including clarity on the requirement to keep records.
- those involved in the mobile part of transport organisations (eg drivers, pilots etc). Those involved in administration (ie non-mobile workers) within transport organisations are covered by the Regulations jobs in domestic service
- armed forces, emergency services and police (in some circumstances)
- managing executives (although the holiday provisions apply)
- family workers (although the holiday provisions apply)
- those working in religious communities (although the holiday provisions apply).
- a period when the worker is working, at the employer's disposal and carrying out activities or duties in accordance with usual practice
- a period when the worker is receiving relevant training or
- any other period which is to be treated as working time within the Regulations.
The Department for Business, Energy and Industrial Strategy has provided guidance on what is included within working time as follows
|Included in working time||Not included in working time|
|Paid overtime and some unpaid overtime (unless purely voluntary)||Attending non-work related social events|
|Travel that is part of work (eg travelling to client's office)||Routine travel (between home and work)|
|Working lunches||Rest breaks where no work is done|
|Time working abroad where a workers works for an employer that carries on business in Great Britain||Non job-related training|
|On-call time when a worker is required to be at his or place of work||On-call time when a worker is allowed to be away from the workplace and to pursue leisure activities|
Workers covered by the Working Time Regulations are entitled to 5.6 weeks' paid holiday leave each year. Public holidays can be included as part of that leave entitlement, provided this is made clear in employees' contracts.
Employees are entitled to be paid their normal rate of pay while they are on holiday. There have been a number of significant cases around what a 'normal rate of pay' is for those workers with variable elements in their pay, such as overtime and commission. See British Gas v Lock  and Bear Scotland v Fulton , East of England Ambulance Trust v Flowers 
The approach of 'rolled up holiday pay' (i.e. paying an additional amount in the employee's wage or salary to cover holidays, and then not paying the employee when they take holiday) is unlawful. See the In-depth page on Holiday entitlement and pay.Workers covered by the Working Time Regulations are entitled to 5.6 weeks' paid holiday leave each year. Public holidays can be included as part of that leave entitlement, provided this is made clear in employees' contracts.
Employees are entitled to be paid their normal rate of pay while they are on holiday. Case law has developed that other payments beyond that should also be included, such as commission and overtime rates. See Lock v British Gas , Bear Scotland v Fulton  and East of England Ambulance Trust v Flowers .
The approach of 'rolled up holiday pay' (ie paying an additional amount in the employee's wage or salary to cover holidays, and then not paying the employee when they take holiday) is is currently unlawful, however the government announced in November 2023 plans to introduce this into legislation for those working irregular hours and part year workers. See the In-depth page on Holiday entitlement and pay for more information.
- armed forces, emergency services and police in some circumstances
- domestic servants in private houses
- sea transport workers, mobile workers in inland waterways or lake transport workers on board sea going fishing vessels
- occupations where you can choose freely how long you will work (e.g. a managing executive)
Employees can agree with a workforce or collective agreement to calculate the average weekly working time over a longer period than 17 weeks, up to a maximum of 52 weeks. There are some careers that automatically have a different reference period, such as doctors in training, who have a 26 week reference period, and offshore workers, who have a 52 week reference period.
Young workers (those who are under 18 but over school leaving age) are not usually permitted to work more than eight hours a day or 40 hours a week. The hours worked cannot be averaged out over a longer reference period and there is no opt-out for young workers.
See our section on young people for further information about school leaving age.
The youngest age a child can work is 14 (13 if local bye-laws allow), aside from in areas involved in television, theatre or modelling. The below therefore outlines provisions for those aged 13 to 16.
During term time, children can only work for a maximum of 12 hours per week, which includes:
- 2 hours maximum on school days
- 5 hours maximum on Saturdays for 13 to 14-year-olds, and 8 hours maximum for 15 to 16-year-olds
- 2 hours maximum on Sundays.
During the school holidays, 13 to 14-year-olds can only work a maximum of 25 hours per week, which includes:
- 5 hours maximum on weekdays and Saturdays
- 2 hours maximum on Sundays.
During the school holidays, 15 to 16-year-olds can only work a maximum of 35 hours per week, which includes:
- 8 hours maximum on weekdays and Saturdays
- 2 hours maximum on Sundays.
Local authorities may also set further restrictions on the hours that children can work and the breaks they should be entitled to.
Any organisation looking to engage a child worker must contact their local authority first, as there may be registration requirements and local bye-laws that apply.
An adult worker can, if they choose, opt out of the 48-hour maximum working week. Any agreement to opt out must be in writing and must either relate to a specific period of time or apply indefinitely.
Within the agreement there must be the right for the worker to give seven days' notice to terminate the agreement. This notice period can be extended by agreement between the parties, but cannot be more than three months. An employer cannot enforce a worker to opt back into the 48 hour working week.
- If the work involves any special hazards or physical or mental strain, the night worker must not work for more than eight hours in any 24-hour period. Night workers have an entitlement to a free health assessment before starting night work, and at regular intervals thereafter. There is an entitlement to adequate rest periods if the nature of the work is likely to cause health problems.
- If a worker's health assessment shows problems that might be connected with night work, the employer should make every attempt to move the worker to alternative work.
If the pattern of an individual’s work puts their health and safety at risk (eg because the work is monotonous or the work rate is predetermined) employers must provide adequate work breaks.
This might apply to assembly line workers doing repetitive jobs, or call centre staff. The requirement for adequate work breaks for monotonous work cannot be modified or excluded by a collective or workforce agreement.
The regulations do not state that this must be in addition to the daily 20-minute rest break, although it is probably best to assume that this is the case.
Compensatory rest is a period of rest that is the same length as a rest period, or part of a rest period, that a worker has missed. Instead, they must be provided with an “equivalent period of compensatory rest”.
The right to compensatory rest only applies to workers in some “special case” sector jobs that are not entitled to an uninterrupted period of 20 minutes rest due to the nature of their job, such as a security guard, doctor or railway operator. It should not be used when the 20-minute rest break can be taken.
In 2019, the UK Court of Appeal outlined in Crawford v Network Rail Infrastructure Ltd that compensatory rest should be structured by aggregating shorter breaks in circumstances where a continuous break cannot be provided. However, the aggregated breaks must still provide “equivalent” value in relation to rest and safeguarding the worker’s wellbeing, thereby preventing employers from aggregating very short breaks, eg those lasting 1 or 2 minutes.
The Regulations do not specify a time limit in which compensatory rest must be taken by an adult worker, however the European Court of Justice has considered this issue in Landeshauptstadt Kiel v Norbert Jaeger. It concluded that where a doctor’s daily rest period had been reduced as a result of working on-call in addition to their normal working hours, that doctor was entitled to take an equivalent period of compensatory rest immediately after the corresponding periods worked.
Young workers have the right to take compensatory rest if they are not entitled to take daily rest or rest breaks. This should be same amount of rest they should have had and can be taken just after any rest they have missed. However, it must be taken within the following three weeks.
It is down to an employer and their employees to agree on payment during compensatory rest.
The European Court of Justice has held in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another that the time spent by workers who do not have a fixed place of work on travelling each day between their homes and the premises of their first and last customer designated by their employer is “working time” for the purposes of the Working Time Directive.
As a result of this ruling, it is very likely that “working time”, as defined under the Regulations, will be interpreted by UK courts and tribunals on the basis that all travel time of peripatetic workers, including to and from their homes, will be regarded as working time.
As such, it is advisable for employers to put in place the necessary monitoring procedures to avoid any abuse (eg to prevent employees claiming travel that they have not completed).
Being on-call relates to situations were a worker is not technically working but is available to work if needed. The question as to when on-call time can count as working time has been considered by the courts in a number of cases.
Previously, the European Court of Justice (ECJ) has held that only time where a doctor was required to be at their workplace was working time for the purposes of the Working Time Directive, and excluded on-call time where a doctor is away from their workplace even though they could be contacted.
They later went on to say that the factor to consider when determining if on-call counts as working time should not be the proximity requirement but instead the quality of the time spent while on-call. For example, when looking at a case concerning a doctor on-call who was required to be at work within 8 minutes, the ECJ held that these restraints on the employee’s time meant his ability to do other activities was severely restricted and as such this fell within the definition of working time.
Therefore, it is advisable to consider the nature of the period in which an employee is to be on-call. If they are able to conduct other activities during this time, it is likely not to be considered working time. However, if they are limited in what they can do, or have to be in close proximity to their place of work, it may be harder for an employer to argue this is not working time.
Sleep-in shifts refer to situations where employees are on-call and remain in the workplace until they are available, being able to sleep through the shift until they are required.
Whether this should be considered working time has been a topic of much discussion within UK courts. Previously, tribunals and the European Court of Justice have held that this should constitute working time for the purposes of the Directive, as individuals are expected to be at work, and at their employer’s disposal.
This stance has changed recently in relation to national minimum wage (NMW), in a ruling from the UK Court of Appeal, later confirmed in the Supreme Court, Royal Mencap Society v Tomlinson Blake , which held that workers who perform sleep-in shifts were only “available for work” when asleep and not actually working, meaning time spent asleep was not working time for the purposes of NMW.
The position remains unchanged that sleep in shifts would still be working time under the WTR, as the individual is still limited in what they can do by their employer.
- representing a colleague at a disciplinary hearing
- attending consultation meetings with management
- carrying out other duties related to the role.
All registered electors between the ages of 18 and 76 who have lived in the UK for a continuous period of at least five years since the age of 13 are eligible for jury service.
Jury service usually lasts for 10 days, but some trials take longer. You will not normally know immediately how long the employee will need to be absent from work for.
The law doesn’t directly give employees a right to time off work if they are called for jury service. However, it is automatically unfair to dismiss an employee or select them for redundancy because of jury service, or subject them to detriment because of it; this protection applies from their first day of employment.
Additionally, an employer could be in contempt of court if they refused to allow an employee time off work. Indirectly, then, employers must allow their employees time off to attend jury service.
They will lose this protection if the employee unreasonably refuses or fails to apply to the court to defer or be excused from the requirement where their attendance is likely to cause substantial injury to the employer's undertaking and the employer had informed the employee of this.
A person summoned for jury service can apply to postpone their jury service. This is a process that the juror must apply to do well in advance of the time they are summoned for jury service. Employees must respond to the jury summons within 7 days of receiving it.
One of the reasons for deferral is if the employees’ absence would cause substantial injury to their employer’s business. Work commitment is often cited in an application for a deferral, but there's no guarantee that it will be accepted. There must be a valid business reason which will cause substantial injury.
You cannot apply for deferral on the employee’s behalf, they must do it themselves but you can write a letter to support the application (ask for template letter JU03 from the 24 Hour Advice Service). If you would like an employee to apply for a deferral, you should ask the employee to respond to the Jury Central Summoning Bureau asking for a deferral and enclose your letter of support.
If the application is granted, the employee will receive a letter confirming this.
Pay during time off for jury service
There is no legal obligation for you to pay an employee during their time off for jury service. However, you can have a policy which provides for payment, in which case you should apply it equally and consistently. If you do pay the employee for the time they spend on jury service, you can’t claim back money you’ve paid the employee or that the business has lost during the jury service.
Where you do not pay the employee, they can claim for losses from the Court. In order for them to do this, you need to complete a Certificate of Loss of Earnings for them to take to the court.
The amounts payable for jury service are reviewed on an annual basis by the Courts Service and employers are advised to check the amounts with their local courts.
|Length of jury service||Maximum daily allowance|
|Up to four hours|
|First 10 days||£32.47|
|The 11th day up to the 200th day||£64.95|
|The 201st and any subsequent days||£114.03|
|Over four hours|
|First 10 days||£64.95|
|The 11th day up to the 200th day||£129.91|
|The 201st and any subsequent days||£228.06|
- justices of the peace
- members of a local authority
- members of a police authority
- members of any statutory tribunal
- members of the managing or governing body of an educational establishment
- members of a health service or education body
- members of a prison visiting committee
- members of the Environment Agency
- members of the prison independent monitoring boards (in England and Wales) or of the prison visiting committees (Scotland).
- attend meetings of the body or any of its committees or sub-committees or
- perform duties approved by the body.
Before taking this time off, the employee and employer should agree the period of time that can be taken by looking at:
- the likely length of time required to carry out duties
- the amount of time previously taken off by the employee to carry out their public duties
- the affect on the business of this time.
Where an employer believes that the request for time off is reasonable, they are permitted to refuse this (unless it is for jury service - see 'Jury duty' above).
Employers of reservists who are called up are obliged to release them and subsequently to re-employ them afterwards, provided the employee makes a written application for re-employment within six months. These special provisions apply only if there has been an official call-up. Employees who are reservists must normally make their own arrangements with their employers for time off for other purposes, such as training.
For more information on the employment of reservists, please refer to our 'how to' guide on managing reservist employees.
During a career break, the employee will not normally be regarded as continuing in employment, but this will be dependent on the agreement made between employer and employee, and whether or not there is a definite offer of employment at the end of the period.
With more staff working from home as a result of the coronavirus pandemic, concern was raised as to how much they were able to switch off from their duties outside of their working hours due to how easy it was to now contact them at home. As a result, the idea of the right to disconnect has garnered more popularity.
This is where employers, by policy and company rules, instructs staff not to respond to any work-related queries, or conduct any work, outside of their hours. It also prohibits them from being contacted, unless in specific situations. Under this ‘right’, staff can turn off communication devices and send automated emails when not working.
It should be noted that this is not a lawful requirement, however employers may consider implementing this policy in order to discourage staff continuously working out of hours.
There have been suggestions of employers having the ability to ‘opt-out’ of this right, should their circumstances allow it, however it is yet to be seen how this would be defined.
An employee with at least two years' continuous service, who is put under notice of redundancy, is allowed a reasonable amount of time off work to search for alternative employment. They should be paid to a maximum of 40% of a weeks pay (a week’s pay here is not capped).
An employer that operates an occupational pension fund is obliged to permit a reasonable amount of paid time off to employees who are trustees of that pension fund. Time off is allowed for performing duties as a trustee and for training in connection with those duties. Time off is paid.
Organisations can use workforce agreements to exclude or modify the following provisions of the working time regulations:
- the 17-week reference period for calculating average weekly working hours can be extended to a maximum of 52 weeks (where there is a technical or objective reason or one concerning work organisation which justifies the greater period)
- the entitlement of a rest period in each 24-hour period
- the entitlement of a rest period in each 7-day period, or 48 hours in a 14-day period
- the minimum rest break where daily working time is more than six hours
- the limits on night worker’s average hours
- the 17-week reference period for calculating average normal hours for a night worker
- the limits on night work involving heavy physical or mental strain or special hazards.
The workforce agreement can also contain specific definitions of ‘working time’, ‘night worker’ and ‘night time’ to be used when determining rights within the regulations.
A workforce agreement needs mutual agreement between the employer and elected workforce representatives, or workers themselves where 20 or fewer workers are employed. The agreement can either apply to the whole of the workforce or those workers who are within a particular group in the organisation, such as those who carry out a particular function or those who work in a particular department or unit within the business.
In order to be classed as workforce agreement under the Working Time Regulations, agreement must:
- be in writing
- be for a duration that is not more than five years
- be signed by the elected workforce representatives or, where 20 or fewer workers are employed, by the appropriate representatives of the workers or a majority of the workers.
In advance of the agreement being made available for signing, the employer must also provide all affected workers with a draft copy of the agreement and any guidance that they may reasonably require to fully understand the agreement.
A workforce agreement cannot be used where the workers have employment terms and conditions which have been negotiated through collective bargaining.
Our template workforce agreement can be found here.
An adult (or young) worker can pursue a claim before an employment tribunal on the grounds that their employer contravened their right to:
a daily rest period
a weekly rest period
a rest break
statutory paid holidays
an equivalent period of compensatory rest
whole or part payment in lieu of statutory paid holidays outstanding on termination of employment.
The worker must complain to the tribunal within three months (subject to certain rules, six months in the case of a member of the armed forces) of the date on which they became entitled to any of the rights outlined above. A tribunal may extend the three-month limit where it is satisfied that it was not reasonably practicable for the worker to present their complaint within the three-month time limit.
In the case of a daily or weekly rest period or a statutory paid holiday extending over a day, the date will be the day that the daily or weekly rest period or a statutory paid holiday should have begun. In the case of whole or part payment in lieu of statutory paid holidays not being made, the date will be the day on which the payment should have been made.
Where the worker’s complaint is successful, the tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the worker. In the case of whole or part payment in lieu of statutory paid holidays, the tribunal will order payment of the due amount by the employer.
However, there is no ability for an employee to bring a claim where the employer has required them to work over 48 hours without opting out. The possibility of bringing a claim for working over the statutory limit requires the employee being subject to unfair detriment or dismissal as a result.
The Taylor Report (produced at the direction of the Government in July 2017) recommended that HM Revenue & Customs should be given a role in enforcing the right to holiday pay. However, no such power has been granted yet and the Government is seeking further information regarding failure of employers to comply with this obligation.
What is bereavement leave?
Bereavement leave is time off work given to employees who are going through a grieving process after the death of someone close to them.
Bereavement can have different effects on different people within the workplace. It can have severe emotional, physical, spiritual or physiological effects on some employees, whereas others may be able to cope better.
Bereavement can have a wider effect on an employee’s job performance, absence record and ability to do certain parts of their role. Under their general duty of care, the employer should take into account the employee’s bereavement and make reasonable adjustments to support them through this time.
Should employers provide bereavement leave?
There is currently no statutory right to bereavement leave and any leave given for this reason is down to the employer to decide. But, there are many advantages to providing leave, including:
- A period of leave immediately after the death may reduce sporadic absences later down the line.
- Retaining valuable employees will save you the cost of recruitment and training a new member of staff.
- Supporting your employees will improve satisfaction and motivation, which in turn contributes towards increased productivity.
There are, however, separate specific rules and entitlements for employees who suffer the loss of a child aged 18 or under, or experience a stillbirth after 24 weeks of pregnancy. This is called parental bereavement leave (also known as jack’s law). More information can be found in our topic area here.
How much time off do employees get?
The employment rights act 1996 gives all employees a right to reasonable time off to deal with an emergency involving a dependant, from the first day of their employment. Time off for dependants can be used immediately following a death, however, it is not intended to cover the grieving process – it is there to provide short-term support for the employee to make practical arrangements (e.g. To plan and attend a funeral).
A “dependant” in this case is defined as a spouse, child, parent, a person who lives in the same household or any person who reasonably relies on the employee in a case of emergency.
“reasonable” time off is not defined by legislation, leaving it to the employer to decide how much time is appropriate based on the individual circumstances, any workplace policies, practices and customs. Some employees may have contractual entitlements to time off for dependants. If that is the case, you must adhere to their contractual rights to avoid risk of breach of contract claims.
Do employees get time off to attend a funeral?
Employees have the right to time off for a funeral if the person who died was a dependant. There is no legal right to time off if the person does not fall within the definition of a dependant, but employers should still be reasonable and respectful in these situations. The person who died may not have a biological or legal connection to the employee, but could still be closely connected to them.
Similarly, employees may request time off to accompany a friend or family member to a funeral. Where this does not fall within the scope of existing bereavement policies, employers should reasonably allow the person to take unpaid leave (including compassionate or “special” leave), or take the day off as annual leave.
How long should bereavement leave last for?
Bereavement leave is time off to deal with the emotional aspects of grief following a death and should be managed as a separate issue. Employers can look at the contract of employment to ascertain an employee’s entitlement to bereavement leave.
In most cases, their entitlement will be flexible so it will be down to you to decide how much time off to give. The employee’s individual circumstances will dictate the amount of bereavement leave needed. This might involve consideration of the nature of the relationship with the deceased and the employee’s emotional stability.
Employers should realise that different employees may need different amounts of time off. However, employees should be treated with consistency as much as possible, and any decision made
Regarding the length of leave should not be based on a protected characteristic (e.g. Age, sex, sexual orientation etc), as this may lead to claims of discrimination.
What pay do employees get during bereavement leave?
There is no statutory entitlement to pay during periods of bereavement leave. As such, this will be unpaid unless there is a contractual provision for pay.
Where employers choose to offer pay for bereavement leave, they should ensure this applies fairly and equally to all employers.
It is beneficial to set out clearly the parameters of the pay entitlements and any eligibility requirements; for example, if the pay varies according to the employee’s length of service. Similarly, a policy should specify the maximum amount (e.g. 2 weeks) and how this can be requested.
What should be included in a bereavement policy?
It’s best to have a policy on bereavement leave so both the employer and employee understands their entitlements during these situations. The policy should outline:
- When leave for bereavement could apply
- How much leave the organisation provides
- If leave is paid, and the amount of pay
A policy may make reference to compassionate leave or special leave; in this context, it applies in the same way as bereavement leave.
If there is no policy, employers should discuss the above with their employee. Some may wish to treat the period off
Work as sickness absence or annual leave. The usual processes for evidencing (e.g. Fit note after 7 days of self-certification for absence) and requesting leave should be followed.
See our template bereavement policy here.
What’s the best way to speak to a bereaved employee?
When an employee experiences a bereavement, talking to them can be difficult but it is important for employers to do so, especially when considering the wider duty of care obligations they have for their staff.
The conversation should be based on the individuals needs but the following structure can be used as a guideline:
- Offer your condolences.
- Explain that the company will provide them with all the support resources available.
- Assure them that they don’t need to worry about work and that their workload will be covered by colleagues.
- Inform them that they can take the necessary time off work and direct them to the policy which deals with time off requests
- Let them know that regular contact will be maintained.
- Ask them how they would prefer to be contacted and times which are convenient or inconvenient.
- It may be appropriate to ask how much information can be shared with colleagues, or whether they would rather keep the situation private.
Employers should remember that the data protection act (1998) applies to any information which the bereaved employee shares with you, so should not be discussed with others.
Can an employee be contacted when they are on bereavement leave?
Asking directly when the employee wishes to return to work may not be appropriate during the initial stage of the bereavement leave. It’s best to keep in touch with the employee during their time off, without being intrusive or causing them undue distress through overly frequent contact.
Having regular reviews will enable you and the employee to discuss any actions which will help them return to work, such as reasonable adjustments or flexible working arrangements. Having a paper trail of the discussion removes any element of confusion, so employers should write to their employee to confirm what was discussed and decided, as well as any future review dates.
What happens when the employee returns to work?
A bereaved employee may wish to make changes to their working hours; this can either be discussed during a welfare meeting or by the employee submitting a flexible working request.
Part-time work or flexible working may be requested by an employee after bereavement, especially in cases where the employee becomes a single parent. Employers can consider and discuss whether reducing or amending their hours or responsibilities will help them come back to work.
A phased return may also appeal to the bereaved employee as it offers gradual change at a pace they are comfortable with. These amendments can be in the form of a long-term change or a temporary adjustment, with regular reviews until the person feels able to return to their previous position.
An employee assistance program (EAP) can offer support and assistance to employees on a number of different issues; bereavement is often one of them. Referring the employee to an EAP or providing internal counselling by a trained professional is advisable.
Is there a link between bereavement and discrimination?
It is important to note that, in some cases, bereavement may have such a severe effect on the day-to-day life of an employee that they may be considered as disabled within the meaning of the Equality act (2010). This would happen when the effects of the loss are long-term (generally when it has lasted or is likely to last for at least one year year).
Employees with a disability (including both physical and mental conditions) have a right to have reasonable adjustments made to their role.
Where the bereaved employee breaches an absence policy, employers should consider excluding some or all of the bereavement related absences, especially if the employee is disabled within the definition on the equality act 2010.
Employees may find it difficult during significant days linked to the person who died, such as their birthday or anniversaries of the death. As such, an employee may request annual leave or authorised absence during these days; employers should be mindful and respectful when dealing these requests.
The Equality act 2010 also provides protection from discrimination on the grounds of religion or religious belief.
Some religions may require the bereaved person to grieve for a set amount of time after the death. If they request that time off work and it is subsequently refused, they may be able to claim indirect religious discrimination.
What happens if a colleague dies?
The death of a colleague can have an impact on everyone in the organisation, especially in cases where the death occurred in the workplace or in its proximity.
When such a large portion of the workforce is affected, it is advisable to provide counselling and support for all. In such cases you shouldn’t keep the death silent and go without addressing it. The employer should:
- Tell others that the person has died, in a sensitive and personal way
- Offer support to staff affected by the death
- Contact the person’s family or next of kin to offer condolences
- Let staff know how they can give their condolences
- Share details of the funeral or ceremony, if staff have been invited
Before passing on an information, it’s best to ask the person’s family or next of kin what they’d like people to know about the death.
There are then some practical considerations which may need to be discussed, for example, in relation to the ending of the employment contract and payment of outstanding wages and accrued annual leave. However, such discussions should be broached delicately and only when the individual is ready.
Employees with ties to areas of world conflict, and possibly some without, may feel compelled to travel there and help, for example by providing humanitarian aid. Where this is the case, employers will need to carefully consider this request. Placing an outright ban on this is unlikely to go down well from an employee relations perspective. It is also likely to be unreasonable and unenforceable.
Employers faced with these requests might consider treating this the same as they would a sabbatical. Reference to a sabbatical policy (such as our template here) would be useful, and the arrangements for their time away and return to work. Of course, it cannot be known how long the situation will go on for , so a definite end date may not be possible, but discussing with the employee an initial period, and means to stay in touch, will at least add some clarity to the situation. Alternatively, a short-term solution is to agree annual leave, or a short period of unpaid leave. It is essential that any agreement includes a means of contact with the individual, such as a forwarding address, email, telephone, or someone that any documentation can be sent to, care of the employee.
Employers facing this situation should be reminded that normal dismissal rules apply in this situation, and that any dismissal would have to be done fairly. A key component to that would appear to be the length of the absence and how an employer may or may not be able to manage that absence.
Some nationals of the countries involved in a conflict may be required to return to the country to join their military efforts. Whilst UK laws on reservists do not apply to them, treating them in the same way as a UK reservist is likely to be the most reasonable course of action, and allowing them to go and return to their same job will be the fairest approach.
With the improvements in medical science, more individuals than ever are able to have their own biological children. As such, employers may be faced with requests for time off to undergo fertility (or IVF) treatment or to support their partner. There is not however any right in law to take time off for this, it is at the employers discretion.
Once option for employees undergoing IVF treatment is to take annual leave. However, an employer may wish to provide additional paid or unpaid leave where an employee has a defined minimum period of service (although employers should take care that this does not amount to unlawful age discrimination). It should also be noted that an employee who is undergoing or recovering from IVF treatment will be entitled to sick pay if they present a medical certificate stating that they are not fit to work.
If employers offer paid/unpaid leave they should bear in mind that:
a medical examination to discover the cause of an employee’s infertility can last from months to years, and it is also very difficult to forecast the length of time that an employee may undergo IVF treatment
the amount of time off from work that an employee takes while undergoing a cycle of IVF treatment will vary on an individual basis, eg an employee may be unfit to work after undergoing such treatment because they are suffering from its side-effects.
Employers may also want to explore flexible working options to see if the employee can undergo treatment outside of core hours and make up the time another day.
It is important to ensure that a procedure is in place, setting out notice requirements and providing for the right to see appointment cards and/or a statement from a qualified medical practitioner that fertility treatment has been approved. Our template policy can be found here.
Where an employer refuses a request for time off to undergo fertility treatment then this may lead to a claim for sex discrimination contrary to the Equality Act 2010 (formerly the Sex Discrimination Act 1975). This may occur where a similar request by a male employee would not have been turned down (direct sex discrimination) or where the reason for refusing the request has a disproportionate impact on women and cannot be objectively justified (indirect sex discrimination). In these situations the female employee would bring a claim under the Equality Act and would have to point to a male comparator (section 13 for direct discrimination and section 19 for indirect discrimination).
Employers should note that the European Court of Justice (ECJ) decided in the case of Mayr v Backerei und Konditorei Gerhard Flocckner OHG that a woman undergoing in vitro fertilization (IVF) will be treated as pregnant from the date the fertilized eggs are implanted into the woman’s uterus. This has implications since once a woman is pregnant she will be afforded special protection under section 18 of the Equality Act 2010. This makes it unlawful for an employer to subject an employee to any detrimental or discriminatory treatment for a reason that relates to pregnancy or maternity leave and women who bring claims under this provision do not have to point to a male comparator. Where a fertilised egg is created but not yet implanted, the woman concerned is not entitled to the protection of the Health and Safety of Pregnant Workers Directive (92/85/EEC). If she could be considered pregnant, the court argued, the protection could be granted even when transfer of the fertilised eggs was postponed, possibly for years. The ECJ went on to confirm, however, that the Equal Treatment Directive (76/207/EEC) would protect a woman from dismissal if the reason for that dismissal was that she had undergone IVF treatment.
In the Mayr case the ECJ also decided that women who are in the late stages of IVF treatment but are not pregnant and complain of detrimental or discriminatory treatment can bring a claim under section 1 of the Sex Discrimination Act for direct discrimination (now s.13 Equality Act 2010). However this case suggests that there will be no requirement to point to a male comparator because at the relevant time they will be undergoing procedures that are unique to women and should therefore be afforded special protection.
The Mayr decision has been supported by the EAT in Sahota v Home Office & Pipkin . It refers to a limited and closely defined period of protection for women undergoing IVF treatment.
The EHRC Code recommends that employers treat requests for time off for IVF treatment “sympathetically”. It states that employers may wish to set up procedures for allowing time off for IVF and fertility treatment. These could identify specific members of staff whom women can notify on a confidential basis that they are having treatment. The Code also suggests that less favourable treatment of a woman because she is undergoing IVF is likely to be sex discrimination even though it would not amount to pregnancy discrimination until the point at which the embryos were implanted.
It is worth remembering that infertility is a medical condition and IVF treatment is expensive and stressful for the person concerned, so any time-off requests should be handled with sensitivity. It is also essential that the employee’s line manager or HR department do not disclose to any person that the employee is undergoing IVF treatment. This is sensitive personal information and should be lawfully processed in accordance with the principles of the Data Protection Act 2018.
In the case of London Borough of Greenwich v Robinson, the Employment Appeal Tribunal found that the use of a redundancy selection criterion that took account of an employee’s time off from work for IVF treatment absences did not amount to unlawful direct sex discrimination because the treatment was given to both men and women. However, the use of such a criterion may amount to unlawful indirect sex discrimination if it can be shown that women require more treatment for IVF than men undergoing fertility treatment, and therefore it is more likely that a woman would be selected for redundancy where the criterion has been applied.
A Bill to require employers to allow employees to take time off from work for appointments for fertility treatment; and for connected purposes, is in the early stages of becoming a law. Whilst it has a long way to go before then, it is still a positive sign that this is at least being considered to become a statutory right.
Regulation 9 of the Working Time Regulations 1998 requires employers to, among other things, keep adequate records to demonstrate compliance with:
- The maximum weekly working time
- Length of night work
- Health assessments and transfers of night workers to day work
This does not require specific records to be kept of daily/weekly rest or of the hours worked each day for every worker.
However, the 2019 judgment of the Court of Justice of the European Union (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE) presents a risk that employers would need to comply with increased record keeping requirements by recording all daily working hours of all workers. In 2023, the government undertook a period of consultation where it proposed to remove this requirement.
In November 2023, the government announced that it will remove the effects of the CCOO judgment, which it said leaves the position as to record keeping uncertain and means employers face the potential of the high cost of introducing a system to record working hours. Once implemented, employers will still need to keep adequate records to demonstrate compliance with the Working Time Regulations, as is currently prescribed in legislation.
Guidance covering the Working Time Regulations will be re-published, including clarity on the requirement to keep records, alongside the commencement of changes to Regulation 9 of the Working Time Regulations.
Any changes to the law will take time and the exact timeline is not yet known.
We know that we should encourage employees to take their breaks. What are the possible penalties on the employer if the employees do not take them?
In our organisation we do ask employees to sign the 'opt out' from the 48 hour week. We always ensure that employees are aware that there is no requirement to sign this, and we inform them that they can give notice if they want to remove themselves from the opt-out. What records are we supposed to keep of those who choose to sign the opt out? Do we have to keep a record of each time that they work more than 48 hours in a week?
I am the HR Manager in a bank. Most of our employees work from 9am to 5pm with an hour for lunch. However, many of our employees do not take the lunch break in full, preferring to stay at their desk and to eat a sandwich as they work. Employees generally comment that they would prefer to work through their lunch break and get their work finished, rather than stay after 5pm to finish their work. Is this a breach of the Working Time Regulations?
Our employees work on an on-call rota, overnight between their day shifts, where they take a phone home and may have to answer it and deal with any issues. The on-call period is 14 hours and starts from when they finish their normal work the evening before, and when they start their normal work the next day. They are rarely called upon to do anything during this time, but if they do have to work, will we have to then delay the start of their day shift to compensate them for the rest lost?
As long as it would not put their health and safety at risk to not do so, there is no need to delay the employee’s start time for their next shift. Whilst the case of Landeshauptstadt Kiel v Jaeger , suggested compensatory rest should be given immediately, government guidance and subsequent discussions at EU ministerial level have suggested this is not necessary, as long as the equivalent rest is given within a reasonable time period. The WTR themselves do not specify the need for the rest to be given immediately, and logically it would not make sense to have to delay the next work period as this could then impact on another employee’s rest breaks if they are then called in to replace the resting worker.
In any event, the period here is 14 hours. Only if the time spent working goes over 3 hours would there be an issue with compensatory rest, as any time under that means there is still an 11 hour rest break. If they were to have to work, for example, for 4 hours, only one hour would need to be made up at the next opportunity. This could easily be in the next 14 hour period between shifts.
One of our employees in the lab was asked to continue working on a time critical experiment. He was paid for this extra time, off course, but it meant he only had a 9 hour rest break between finishing and starting the next day. He is now arguing that he needs compensatory rest, and that he should be paid for that time too. Is this right?
In short, no. The original government guidance stated that ‘other time’ can be utilised for compensatory rest, and therefore it does not need to fall within time that otherwise have been worked or paid for. The rest that was missed out on was not paid time, and therefore the employee has not lost financially by missing out on it and should be adequately compensated for any health detriment by getting the missing rest time at the earliest opportunity.
To allow for financial compensation for missed rest breaks, by allowing for them to take place during paid working time, would in effect mean special case workers are getting the advantage of performing less work for the same pay. This is not likely to have been the statutory intention when the compensatory rest rules were created, and therefore it would be inappropriate to impose this requirement on employers
I run a care business, and I have my staff working all over the county. Where are we with the rules on "working time"?
This issue has exercised the Court of Justice of the European Union (formerly the European Court of Justice) — and subsequently the domestic courts and tribunals — on a number of occasions. In summary, the Court of Justice held that on-call time constitutes “working time” (when the employee/worker was entitled to be paid) if the employee is required to be:
- in the workplace, and
- available to carry out work if and when called upon — this would be so even if the worker could sleep for some or all of that time.
In a UK case in 2005, the EAT held that time spent on-call during which the worker (a care manager of sheltered housing) was not allowed to be more than three minutes away from work (at which she had tied accommodation as her “home”) amounted to “working time”. This was the case even though the worker was free to watch TV, entertain guests, and sleep until such time as she was called upon to carry out active duties. The three-minute restriction was enough of a restriction to render all on-call time as “working time”. The fact that the employer’s workplace was also her home was irrelevant.
In 2014, the EAT had to deal with this issue in the case of Truslove v Scottish Ambulance Service. In this case, the EAT said the focus should be on whether the place where the employee was when on call was where the employer required that employee to be. If employees were required to be away from home, for example, or even to remain at home or within a short distance from the workplace, the time spent during this period is not wholly their own - it is under the control of the employer. The relaxation available during genuine rest periods is, therefore, unavailable when employees remain ‘shackled’ to a particular location and under an obligation to provide a response to their employer’s requests - in this case, the employees could not be more than three miles away from the ambulance station whilst acting as relief cover.
The EAT, allowing the appeal, held that the paramedics’ lack of freedom to be anywhere other than within a three mile radius of the station was the determining factor in whether their on-call time was working time.
The majority of the case law on the subject of on-call time is not favourable to the employer. Employers should be extremely cautious when faced with a claim that on-call time is “working time” — to get it wrong could prove very expensive.
All but one of my workforce have signed an opt-out agreement to show that they are willing to work more than 48 hours per week. The one employee who has refused has often been difficult over other matters. Can I use their refusal to sign the opt-out agreement as a reason to dismiss them?
No — it is up to each individual to decide whether or not they wish to opt out of the 48-hour working week — the maximum average working week averaged over a rolling reference period of 17 weeks. It is a free choice and you should not penalise them for failing to sign. This employee cannot lawfully be penalised, dismissed or subjected to any detriment for refusing to sign that opt-out agreement.
If you dismiss this employee, or attempt to subject them to any detriment, they can complain to an employment tribunal. Any dismissal will be automatically unfair — regardless of how long the employee has been with you. There is no minimum period of service (for example, two years) to put in a claim in this case. If the employment tribunal finds in their favour, you may be liable to pay hefty compensation — subject to a statutory limit.
Employers should keep a record of these opt-outs, remembering that the employees who signed the opt-out agreement have the right to cancel the opt-out at a future date in accordance with the required notice and revert to a 48-hour week (on average). If there are issues at work, then they should be dealt with separately and in accordance with your disciplinary procedures.
I want to make sure that are compliant with the law. Are there particular rules when it comes to rest breaks?
The Working Time Regulations 1998 set out the following provision for rest breaks at work and time off. These rules apply to adult workers, who are 18 and over.
Rest breaks at work
A worker is entitled to an uninterrupted break of 20 minutes when daily working time is more than six hours. It should be a break in working time and should not be taken either at the start, or at the end, of a working day.
Under regulation 10 of the 1998 Regulations, a worker is entitled to a rest period of 11 consecutive hours’ rest in each 24-hour period. No averaging is permitted and the break must be a genuine one.
However, there are a number of special circumstances in which the entitlement to rest periods does not apply, for example:
- where the activities involve a need for continuity of service or production or;
- where there is a foreseeable surge of activity.
- if a shift worker changes shift, it may not be possible for them to take their full rest entitlement before starting the new pattern of work. In such a case, the entitlement to daily and weekly rest does not apply.
An adult worker is also entitled to one day off a week which can be averaged over two weeks, i.e. one day off in seven, or two days off in 14. There is no need for the days to be consecutive, as long as they fall within a 14 days period. The 1998 Regulations do not deal with the question of whether employees are entitled to be paid during rest breaks, which is a matter determined by the employee’s contract.
We have decided that a number of employees need to be on call to respond to emergencies outside of normal hours. These employees are arguing that the on-call periods should be treated as work time under the Working Time Regulations and therefore health and safety legislative requirements would apply. Is this the case?
The definition of working time for the purposes of the Working Time Regulations is “any period during which the worker is working at their employer’s disposal and carrying out their activity or duties”.
Applying this to on-call workers can be problematic as, on the one hand, an on-call employee is usually free to pursue certain leisure activities but on the other, this freedom is usually limited to a greater or lesser degree by the fact that they must be available to take calls and return to their workplace if necessary.
European Court and Employment Appeal Tribunal judgments have tried to interpret the legislation. These have evolved around two types of on call:
- on-call time: where a worker is obliged to be at their workplace and carry out duties at employer’s request
- inactive on-call time: where work is on call but not required to carry out any duties, eg they are at their home.
In respect of the former, case law (SiMAP and Jaeger as well as MacCartney V Oversley House Management) has determined that working time includes time spent on call at a place of work, even when that time was spent sleeping.
For the latter, workers are only deemed to be at work, once the on-call system is actuated and they are required to undertake work.
However, the case of Truslove and Another v Scottish Ambulance Service considered the situation where paramedics were not required to stay at a particular place, but were subject to onerous restrictions as to where they could be (in terms of travel distance and response times). In this case the EAT considered that on-call time was working time.
The EAT stated that the following should be considered when determining whether an on-call employee should be considered to be at work:
- During an on-call shift, could the worker be described as not being at work?
- Are you specifying that the worker is obliged to remain at a location, or within a set distance of a location?
- Could the time that the worker is on call be considered their own?
If the answer to the first and third questions is “No”, and the answer to the middle question is “Yes” then it is likely that any time the employee spends on call should be classified as working time for the purposes of the regulations and the employer should ensure that adequate provision for rest periods is built into the worker’s schedule. However, each case should be considered on its merits.
An employee has said they need some time to come to terms with the death of the Queen. They have asked about bereavement leave, is this a statutory right?
There is no legal right to bereavement leave in Britain, other than parental bereavement leave for parents whose child under the age of 18 dies. This means that any right to time off to grieve after a death, other than for those entitled to parental bereavement leave, is at the discretion of the employer. It's common that bereavement leave clauses in contracts permit time off after the death of a close family member and so would not cover the death of the Queen. It is not likely, therefore, that employees will have a right to take time off to mourn the Queen's death. Employers are free to allow employees time off for this reason but should apply it consistently to avoid claims of favourable treatment. You may find that employees take sick leave if no alternative leave is available.
What are the entitlements to time off for public duties during working hours?
All employees, regardless of length of service or hours of work are entitled to time off for public duties. The following do not qualify for such time off:
- agency workers
- members of the police service or armed forces
- merchant seaman
- civil servants — if their public duties are connected to political activities (restricted under their terms of employment)
- those employed on a fishing vessel, gas or oil rig at sea.
Employees are entitled to reasonable time off for the following public duties.
- Councillors in local authorities.
- Members of statutory tribunals (for example, employment tribunals).
- Governors of schools and other educational establishments.
- Members of police authorities.
- Trade union duties.
- Magistrates (called ‘Justices of the Peace’ in Scotland).
Employers can agree to pay staff for such time off but are not required to do so by law. Employees do not have to make up the time spent on public duties at a later date.
Other types of public duties
Some employers may be keen to show a commitment to social responsibility and allow time off for employees who are in organisations like the Special Constabulary or Territorial Army. However, an employer does not have to grant this time. Territorial Army members have special employment protection if called up. Employees must be allowed time off for jury service.
Do I have to allow my employees paid time off when they are called for jury service, or can I delay it?
There is no legal right to time off for jury service, paid or otherwise (although employees can claim for loss of earning expenses directly from the courts if they are selected for jury duty). However, employers may be held in contempt of court if they don’t allow an employee to fulfill their duty. Also, dismissing an employee for taking time off for jury service is automatically unfair.
If the employee’s absence would seriously harm your business, you can ask the employee to defer their jury service. The employee must apply for deferment themselves, but you can write a letter supporting their application which the employee can give to the court. Note, this can only be done once in a 12-month period.
Do employees have to be given time off to perform their duties as a magistrate (or a justice of the peace in Scotland), and does this extend to time off to train to become one?
The right to time off to perform public duties is found under section 50 of the Employment Rights Act 1996, which gives the right for ‘reasonable’ time off. There is no minimum service requirement for this right to apply.
Time off can be requested to attend meetings, and to perform duties related to the function of the body. It must be genuine time off; it is not permissible to simply re-arrange work to another time. Basic guidelines for time off to perform duties as a magistrate (equally applicable to time off for other public duties) are:
The employee should give “reasonable” notice of the dates on which time off is needed and details of how much time off will be required.
- The time off must be agreed in advance.
- If the employee is allowed time off for other reasons as well, eg to take part in union activities, the employer can take this in to account in deciding how much additional time off is reasonable.
- Where the public duty has training requirements or other essential activities attached to it, such as being a magistrate then, when agreeing to the request for time off, the employer should recognise that these additional days off may also have to be given (Borders Regional Council v Maule  (EAT)). Employers are expected to discuss any issues relating to time off to perform public duties with the employee and reach an agreement.
- If the employee's attendance is essential to the business, then it may be reasonable for the employer to refuse time off.
- Where there is a collective agreement about how much time off employees may have for public duties, or the employer has a policy in place, this will be taken into consideration by a tribunal, but will not necessarily be conclusive.
My employee has travelled abroad during their annual leave, but now there is news that flights from their destination have been stopped due to the weather conditions.
Employees who will miss their first day back at work because flight delays are affecting their return journey have a responsibility to get in touch with their employer to let them know they won't be back in work as planned. Normal absence notification procedures should be followed although it may be helpful if employees speak with their employer as soon as they know that they will not be back in time for work to give as much notice as possible for alternative arrangements to be made. These days, almost everyone has a mobile phone so there shouldn’t really be any employee who does not have the means to quickly get in touch with their employer.
If the employee does not get in touch, it would initially go down as unauthorised absence until they confirmed to you why they were not in. Where normal absence notification procedures have not been followed, find out why. It may be that the timings of their delayed flight meant they were unable to get in touch when they should have, so keep an open mind here.
It is likely that the employee’s absence will last only one or two days but you should try to come to an agreement over how to categorise the absence; for example, you could agree that more annual leave is taken, or the employee could use up some time banked in lieu. In both of these cases, pay will not be affected. If no other arrangement can be made, unpaid leave is likely to be the most appropriate option. Although the employee is not in control of their circumstances, there is no legal obligation to pay employees who are absent for this reason unless their contract contains a provision to the contrary.
Unauthorised absence can be a reason for dismissal but, where an employee has at least two years’ service, dismissals need to be reasonable and meet procedural requirements. Dismissal for absence caused by a flight delay are likely to be unreasonable if the employee has a clean disciplinary record but each case will turn on its facts. Employers should also be careful to ensure that no dismissal is discriminatory.