This is the provision that got the most headlines. Regulation 4 places a limit of 48 hours on the average working week. The 48 hours is an average worked out over a particular reference period which is generally 17 weeks. This means that workers can work more than 48 hours in any particular week provided that the average over the 17 week period is less than 48 ie workers must work less than 816 (48 x 17) hours in total over any 17 week period.

Employers have a duty to take all reasonable steps to ensure that the limit is complied with for example by monitoring working hours and giving time off where appropriate.

Note that individuals can opt out of the 48 hour limit by agreement. The agreement must be signed and in writing Employers must keep a record of names of people who have opted out.

In one case involving a mining company the workers enforced their rights in the courts not to have to work more than an average of 48 hours per week. The result meant that the workers could stay at home until their average had moved below 48 hours per week.

2. Night Work (Regulation 6)

Regulation 6 limits a night workers normal hours of work to an average of 8 hours in every 24 hours. A night worker is defined as someone who normally works at least 3 hours during night time. Night time is generally defined as 11 pm to 6 am but by agreement it can be any seven hours between 10pm and 7am. Again it is an average figure being looked at and the reference period is 17 weeks over which to work out whether the average 8 hour limit is being complied with. Employers have a duty to take all reasonable steps to ensure that the limit is complied with.

Employers must carry out health assessments (both before and during employment) to check that their workers are capable of being night workers. This is because studies have shown that there are additional health risks of working at night. Employers should therefore make any offer of a night work job conditional upon the worker passing a health assessment. If an existing worker cannot work at night there is an obligation to transfer them to suitable day work if possible.

If a night worker's work involves special hazards or heavy physical or mental strain then the employer must ensure that the worker never works for more than 8 hours in any particular 24-hour period.

Individuals cannot opt out of the night work provisions but they can be varied by agreement with unions or the workforce as a whole.

Whereas the 48 hour limit and the night work provisions must be strictly enforced the next two principal effects of rest periods and holidays are simply entitlements which the employer has to provide only if the employees ask for them.

3. Rest Periods (Regulations 8 , 10, 11 and 12)

The Regulations entitle workers to certain weekly and daily rest periods as well as breaks within a working day. These are as follows:

Weekly - in each 7 day period a worker must have an uninterrupted break of 24 hours (usually a weekend);

Daily - in each 24 hour period a worker must have an uninterrupted break of 11 hours (workers can therefore only work a maximum 13 hour day); and

Breaks - in each working day of longer than 6 hours a worker must have an uninterrupted break of 20 minutes. These are in addition to a general duty to give workers adequate rest breaks if the worker's health or safety is at risk, for example because the work is monotonous or the work rate is predetermined.

There are longer rest periods for young workers ie those over school leaving age and under 18. For example if their working day is longer than 4½ hours they are entitled to a 30 minute break.

The break must be uninterrupted. Therefore you cannot comply with the 20 minute requirement by giving someone two separate 10 minute breaks. The break should also be during the working day not at the end or beginning of it.

Note that these are entitlements but do not have to be taken by workers or enforced by the employer.

4. Holiday (Regulations 13 to 16)

Before the Regulations came into force it is estimated that 2½ million workers had no rights to a holiday at all.

The Regulations introduced for the first time in the UK a statutory right to a basic holiday entitlement. This is currently 4 weeks per year. Note that part of the 4 weeks can be used up by bank holidays (which do not have to be given in addition to the 4 weeks).

The holiday entitlement accrues from the first day of employment.

The rest periods described above do not need to be paid for but the holiday must be paid at a week's pay for each week of holiday. To work out a week's pay you take the average pay over the previous 12 weeks.

Note that this statutory holiday can only be taken in the relevant holiday year. It cannot be carried forward and employers cannot pay in lieu (except on termination when payment in lieu of any untaken holiday entitlement must be made).

There are provisions for the worker to give the employer notice of the holiday to be taken. In general the notice must be at least twice as long as the holiday period eg if they want to take one week's holiday then they must give at least two weeks notice of it. The employer can then give a notice if it objects to holiday being taken at that time. The employer's notice must be the same length as the holiday eg for one week's holiday, at least one week's notice. The employer can also give notice requiring a worker to take holiday at a particular time.

What if the employer does not comply with the Regulations?

There are three types of sanction:

Criminal

It is a criminal offence not to comply with the 48 hour limit or the night work provisions subject to a fine of up to £5,000 or in more serious cases (eg if a prohibition notice is not complied with) a fine of up to £20,000 and up to 6 months imprisonment. Note that for a company this is likely to be imprisonment of the person with responsibility for ensuring that the Regulations are complied with.

If an employer does not provide adequate breaks in monotonous work then this is also a criminal offence.

Employment tribunal

If a worker has suffered a detriment from their employer or been unfairly dismissed for failing to agree that the 48-hour limit or night work limits do not apply then they can apply to an Employment Tribunal.

If a worker is refused a rest period (or suffers a detriment from the employer for taking such a rest) then they can claim damages in an Employment Tribunal.

If an employer does not give the holiday as paid or refuses to give a worker his holiday entitlement (or the worker suffers a detriment from the employer for taking such a holiday) then the worker can bring a claim for damages in an Employment Tribunal.

Local authority

Responsibility for enforcement of the 48 hour limit, night work and rest period provisions is split between the Health and Safety Executive and the Environmental Health department of the Local Authority. Inspectors have powers to enter premises at reasonable times, to interview people and to require documents to be produced. Inspectors can serve improvement notices if the provisions are not being complied with and serve prohibition notices if they believe that an activity involves a risk of serious personal injury. If a prohibition notice is not complied with it can lead to the heavier criminal fines or imprisonment.

© Davenport Lyons 2005. All rights reserved This document reflects the law and practice as at February 2006. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.