The Smell of Bullshit, part 25: working hours

Someone drew my attention to this yesterday. I’m not particularly familiar with legal terminology, especially American legal terminology, so all I can say is that it looks like some Lush shop managers in the USA are suing the company for not paying them enhanced rates for overtime which they were legally entitled to. I make no comment on the rights and wrongs of the case because I don’t know, but I thought it might be useful to offer some information about the law regarding working hours in the UK.

Now, those of you who have read all the Bullshit posts on this blog will know that Mark Constantine said quite openly on the Lush International Forum that he didn’t see why Lush should have to pay attention to employment law because they were a small family business and it would cost them too much money. And you’ll know that as far as the law goes, Mark’s feelings don’t come into it – the law is the law is the law and he doesn’t get to decide that his multi-milllion pound international business is above it.

We already talked about holiday entitlement for people on zero hours contracts, but now lets talk about basic working hours. In the UK, the law relating to working hours is shaped by the European Working Time Directive. It gives EU workers the right to a minimum number of holidays each year, rest breaks, and rest of at least 11 hours in any 24 hours; restricts excessive night work; and provides for a right to work no more than 48 hours per week. In the UK, it is possible for employees to opt out of the maximum 48 hour week and work longer hours, but all of the other requirements of the directive must be observed.

Her Majesty’s Government’s website has a useful overview of the regulations. These are the main points:

  • workers do not normally have to work more than 48 hours in an average week
  • working hours should be set out in the employment contract or written statement of employment details
  • employers cannot force employees to work more than 48 hours a week (averaged over 17 weeks)
  • there are some jobs which are exempt from the 48 hour limit but Lush manufacturing and retail jobs do not fall into the exempt categories
  • adult workers (those who are 18 or over) can choose to opt of the 48 hour limit
  • opting out must be voluntary and it must be recorded in writing
  • opting out of the 48 hour limit can be temporary (for a set period of time) or it can be indefinite
  • opting out cannot be a collective agreement with the whole workforce, although employers can ask every worker individually if they would like to opt out
  • employers should not sack or unfairly treat a worker (eg refuse promotion) for refusing to sign an opt-out, and if they did, the worker might have grounds for legal action
  • a worker can cancel their opt out agreement whenever they like, even if it has become part of their employment contract
  • employees must give at least 7 days’ notice of cancelling their opt out agreement, and might have to give longer if their agreement requires it
  • the employer cannot force a worker to cancel their opt out agreement
  • 16 and 17 year olds cannot normally work more than  hours a day, 40 hours a week, regardless of averages, and they are not allowed to opt out and work longer

The number of hours you work per week can be averaged by your employer over the applicable 17/26 reference week period (or your contract length), rather than measured in one week, and the first 20 days holiday you are legally entitled to cannot be used to reduce your average number of hours worked. However with the daily and weekly rest breaks and the opt out above included, the maximum in any week you should work is 78 hours.

This page has useful information about calculating your working hours and what counts as work.

If someone works for more than one employer, the amount of combined hours shouldn’t be more than 48 hours on average a week. Workers with more than one job could either consider signing an opt-out agreement if their total time worked is more than 48 hours, or reduce their hours to meet the 48-hour limit.

Overtime is normally hours that are worked over the normal full time hours; it can be compulsory or voluntary. Compulsory overtime would form part of the terms and conditions of employment, but workers can still not be made to work over 48 hours on average per week if they do not agree to. There is no legal right to be paid extra for any overtime worked, but this should be detailed in the terms of employment.

Rest breaks are also important. Workers are entitled to a minimum daily rest period of 11 hours uninterrupted rest between finishing your job and starting the next day. (Workers aged between 15-18 are entitled to a minimum daily rest break of 12 hours). This means that if you finish work at 8pm, you cannot be asked to start again before 7am (8am for under-18s). Workers are also entitled to a weekly rest period of 24 hours uninterrupted rest within each seven day period (workers aged 15-18 are entitled to 48 hours); or, if the employer chooses, a fortnightly rest period of 48 consecutive hours within each 14 day period. The weekly rest period cannot include any part of the daily rest period.So, if you have worked 8am-6pm Monday – Friday, finished at 6pm on the Friday and had 11 hours daily rest break, the 24 hour rest period does not start until 5am Saturday and the worker wouldn’t be able to work again until 5am Sunday.

If your working day is more than 6 hours long, you are entitled to a 20 minute break. If you are 15-18 years old, and you work more than 4.5 hours at a stretch, you are entitled to a 30 minute rest break. If you are an agency temp, the employer you are working for, not the agency, is responsible for ensuring you get your breaks. Breaks are usually unpaid, but might be paid, depending on your contract of employment.

There is plenty of useful information about working hours on the internet. If you feel your employer, no matter who they are, is not treating you in line with the legal requirements, then please join the appropriate union and get assistance. Your legal rights aren’t optional.

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3 thoughts on “The Smell of Bullshit, part 25: working hours

  1. Unfortunately they’re not alone in bad working practices/illegal exploitation of workers.

    A friend of mine works for Next. She worked Friday 2-4 and 6-10 then was back in on Saturday at 5am for the sale.

    She works in the back room at night, sorting out deliveries.

    The manager went apeshit when one staff member managed to override the Aircon so it worked when they were on shift.

    The state of them earlier in the week wasn’t even funny. They took pictures of themselves with sweat pouring off them.

    They know that legally they can refuse to work in those conditions, but with the two shops in our town merging soon they’re loathe to do so – particularly as they have to reapply for the jobs they’re already in.

    I presume the same legislation applies to hot rather than cold working conditions? I seem to recall being told that if the temp in our office exceeded a certain temperature we were legally allowed to leave.

  2. When I looked into it last year (as the air conditioning broke in our office, we weren’t allowed to open any windows and up on the fifth floor the temperature daily started at over 30 degrees and would sometimes approach 40) the HSE didn’t seem to have an upper legal limit, and my employer also claimed there wasn’t one, but that if you felt ill due to the temperature you could go home but it would count as sick leave, unless, of course, you were able to work from home. When the unions got involved, they finally allowed opened a couple of windows, but this only made a difference of a couple of degrees, and we still couldn’t open them on one entire side of the building as there was a building site/demolition going on next door.

    The point in the anecdote is that my understanding is there is no legal upper limit, just a lower legal limit. There is an advisory upper limit I think though, although this may (from memory) depend on the type of work, as HSE regulations are about being able to carry out your jobs safely.

  3. Pingback: The Smell of Bullshit, part 60: holiday pay again | Mitherings from Morningside

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