Rest Breaks:

The Working Time Regulations entitle all Workers and Employees to:

• A minimum Daily Rest Break of 11 hours 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).
• A Weekly Rest Day of 24 hours within each seven day period (Young Workers aged 15-18 are entitled to 48 hours); or a Fortnightly Rest Period of 48 consecutive hours within each 14 day period.
• A break of 20 minutes if your daily working day is more than 6 hours long (or 30 minutes if you are aged 15-18 years and you work more than 4.5 hours at a stretch).
• You are entitled to ‘equivalent compensatory rest’ if any of the above rest breaks are not given.

In the Film and TV Industry your production can legitimately ask you to work into your break if there is a genuine need for continuity of production/service beyond the planned schedule, or where the work is affected by unusual or unforeseeable circumstances beyond anyone’s control, or where work is affected by an accident or risk of an accident.

Breaches of rest-break provisions are made through a claim to Industrial Tribunal (within 3 months of the breach) – although compensation is usually very limited – or via claims to the Health and Safety Executive.

Working Hours Time Limits:

The legislation also states that you cannot work for more than 48 hours per week, which is normally measured over a 17 week reference period. However, this ‘17 week period’ can be amended in certain circumstances (via a collective agreement or if there are special circumstances). This is often extended to 26 weeks in the TV and Film industry where there is a need for continuity of service or production.

If you are on a contract for a fixed period (Fixed Term PAYE or worker), that is under the 17 or 26 week reference period (whichever your employer is using), your ‘reference’ period for calculating your working hours will be the actual length of your contract (see below).

However often in the Film and TV industry workers are asked to voluntarily sign an Opt-Out of this 48 hour limit (which is legally valid) – i.e. you agree that you can work for more than 48 hours per week. The Opt-Out is not a condition of your employment and it must remain optional and voluntary. Therefore even if you have signed your contract with an Opt Out in place you have the legal right to opt back in to the 48 hour limit at a later date – you have to give your employer a minimum of 7 days notice in law to do this (check your contract in case it requires a longer time scale to Opt back in, as this is allowed).

You should not be subjected to any detriment by refusing or proposing to refuse to sign an Opt-Out agreement. If you are an employee and are dismissed because you refuse to sign an Opt-Out clause then this could be seen as unfair dismissal and you can make a claim to an Employment Tribunal.

In April 2009 the UK won its right to retain the Opt Out – the European Parliament had proposed to remove the Opt Out provision within 3 years – so for now the Opt Out remains legal and valid.

The number of hours you work per week can be averaged by your employer over the 17/26 week period (or your contract length), rather than measured in one week, and the 28 days holiday you are legally entitled to (see below) cannot be used to reduce your average number of hours worked. However with the Daily and Weekly Rest breaks above included, the maximum in any week you should work is 78 hours.

Breaches of the 48 hour limit are dealt with by the Health and Safety Executive (ie a prosecution and/or a fine for your Employer, but not compensation for the worker).

Paid Holidays Under the Working Time Directive Legislation:

The Working Time Regulations also entitle Workers and Employees to a legal minimum of 28 days paid leave each year.

Things you need to know:

• Your Employer has no legal obligation to insist you take your statutory holiday entitlement.
• You start building up your holiday entitlement as soon as you start work.
• You need to tell your employer when you want your leave but they can control when you take it (i.e. agree or disagree to the dates you want).
• You should get paid for untaken holiday if you leave your Employer (but you have no legal entitlement to be paid if you cannot or choose not to take them all – unless you have been off sick, see below).
• Bank and Public holidays can be included in these 28 days; at the moment there is no statutory right to take bank holidays off (the Government has proposed to give paid time off for Bank holidays in addition to the 28 days although this has not yet been implemented in law). Therefore if you take a day off as paid leave on a bank holiday it may count as one of your annual leave days under WTD legislation – depending on what your employment contract says. (For more information on Bank Holidays see below).
• Your employer may give you more leave than 28 days as part of your contract.
• There is no legal obligation that unused holidays should be carried forward into the next leave year. Your employer may choose to allow this though.

The Government increased the minimum statutory holiday entitlement to 24 days per year from 1st October 2007, and to 28 days per year from 1st April 2009 for those working 5 days per week.

NB Freelancers in the TV and Film Industry are often classed as Workers for the purposes of WTD so are eligible for this holiday -

however, often the holiday cannot be taken during the contract period and may be included in your weekly/daily rate. This practice was ruled unlawful by the European Court of Justice in March 2006, and the Department of Trade and Industries guidance has been amended to reflect this judgement. This decision may, however, still be subject to case law if it is referred back to the Court of Appeal/Employment Tribunal.

STOP PRESS – In January 2009 the European Court of Justice ruled that Employees are entitled to accrue holiday pay while on sick leave and can carry that leave over into another year if they are too ill to take it -

(and/or be paid in lieu for any leave they are unable to take if their employment is terminated). This case was referred to the UK House of Lords in May 09 for a final hearing before implementation into UK law as this decision by the ECJ conflicts with the UK Governments interpretation of the WTD law – which in the UK requires employees to use their holiday entitlement within a year or lose it.

The House of Lords ruled that people who are denied holiday pay while on sick leave can make a claim to an Employment Tribunal for an ‘unauthorised deduction from wages’ (with claims possibly being able to be back-dated as far back as 6 years). This ruling supercedes UK WTD Legislation but it is not yet clear whether the Government will amend their WTD regulations to reflect this.

Bank Holidays

There are 8 permanent Bank Holidays in the UK. However:

• There is no statutory right for Employees to take bank holidays off work (but your employment contract may allow this).
• There is no statutory right to extra pay if you work on a bank holiday. Any right to extra pay depends on the terms of your employment contract.
• Part-time employees should receive a pro-rata’d allowance of paid bank holidays to ensure they are dealt with fairly – even if they do not normally work on the days the bank holidays fall.
• Where a bank holiday is alligned to a Christian festival (i.e. Easter) there is no requirement to allow additional time off for employees who practice other religions.
• The statutory holiday entitlement of 28 days MAY include bank holidays (or your Employer may give you some or all of the bank holiday days in addition to the 28 days).

The Direct Gov sites information on rest breaks and holidays is here:

http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeoff/inex.htm

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If you work in the UK Media Industries and have a question about this or any other topic, please e-mail us at workline@freelanceadvisor.co.uk

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.