Employment

Working Hours, Rest Breaks and Holiday Entitlements – Working Time Directive – and Bank Holidays

Author: Lesley Furber View Comments Print This Post Print This Post

Justice League Minifigs - Quorum

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).
  • Your Employer should specify the notice periods they require you to give, before you take leave, in writing. If this is not specified you must give at least twice the length of the intended leave period you wish to take – e.g. you give 2 days notice to take 1 days leave. Your Employer should reply (agree or disagree) within the same length of time as your intended leave – e.g. you want 1 days leave, give them 2 days notice and they should reply within 1 day.
  • Your Employer may restrict you taking leave through the following – by your employment contract, via custom or practice or by negotiations with a Trade Union or Employee Representative. They can restrict your leave because: they shut down at certain times; they can specify when you may or may not take your leave; they may cap the amount of leave that you can take at any one time. If such arrangements don’t already exist then your Employer must give you notice to require you to take your leave – of twice the length of the leave period they require you to take, e.g. they need to give you 2 weeks notice to require you to take 1 weeks leave.
  • 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 the first 20 days holiday entitlement, if unused, should be carried forward into the next leave year, unless you have been off sick (see below). The additional 8 days holiday entitlement can be carried over into the next holiday leave year, if unused, with your Employers agreement. Your Employer may choose to allow more than 8 days to be carried over though.

The Government increased the minimum statutory holiday entitlement to 24 days per year (from 20 days) 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 (called ‘rolled-up’ holiday pay). 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, saying that payment for the statutory annual leave should be made at the time when the leave is taken. 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 statutory minimum holiday entitlement while on sick leave and can carry that leave over into another year if they are too ill to take it and prefer not to take it during their sick leave (and/or be paid in lieu for any leave they are unable to take if their employment is terminated).

(If an Employee chooses to take their holiday leave entitlement while on sick leave they would be paid normal holiday pay rather than company or statutory sick pay (which may be less or none depending on how long they have been off sick) for the days the treat as annual leave. If you qualify for SSP you would continue to receive this during any annual leave pay period).

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 new (2010) UK Tribunal decisions have now backed up this ECJ decision. However, until UK case law clarifies this or the Government amends the Working Time Directive regulations this will be a grey area (the Government are consulting later in 2010 on possible amendments to the WTD).

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

Image by levork

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
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
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.

More articles in: Employment
User Comments
Name
Oct 11, 2009
at 2:07 pm

are breaks paid for if you work a 10 hour day if so what is the entitlement?

Lesley Furber
Oct 19, 2009
at 2:34 pm

hi, breaks needed under the Working Time Directive don’t have to be paid – you need to check what your contract says.

Tony Newman
Jan 20, 2010
at 3:14 pm

I am an agency worker in a clinical role to the NHS. My placement at an NHS trust might be for weeks, months or a year+. I am paid weekly, on a standard hourly rate, which is enhance if working over 40hrs p/w or weekend working.

I am unpaid if absent form work due to holiday or sickness.

I am currently paid as PAYE, through an “Umbrella Company” in order to offset travel expenses against tax. I have recently learnt that in addition to their standard fee to the employing Trust, my agency charge another fee based on my hours worked, apparently for something connected to the Work Time Directive ruling on Holiday Pay.

Neither my Agency or the Umbrella Company provide holiday pay. Although it appears on statements from my Umbrella company, they insist the amount is show purely because they have a requirement to do so and that holiday pay is included in my hourly rate.

Does this sound normal practice, or might I be getting conned out of some hard earned sunbathing in the Tropics ?

Lesley Furber
Jan 20, 2010
at 5:28 pm

hi Tony, I’m going to e-mail you about your query as I have some questions I need to ask you. Regards, Lesley Furber

milliemolliemandy
Mar 28, 2010
at 2:21 pm

I have been getting from my employer minimum holday entitlements. But been paid time and half for bank holidays. now we are being told that bank holidays will be included in our holiday entitlements.
So if we work on a bank holiday at time & half. then we lose 6 hrs annual leave. or we can work at normal rate and retain our annual leave. However this is not in our contracts. is this legal. should it not stay the same because of custom and practice.

Lesley Furber
Mar 30, 2010
at 9:49 am

Hi, I'm going to e-mail you about your query above as I have a couple of questions. Regards, Lesley Furber

Holly8
Mar 30, 2010
at 3:49 pm

I work 3 days a week – am paid a freelance daily rate – I've been freelancing for over a year at the same company. Am I entitled to holiday/sick pay? I do sometimes have childcare issues when I have to leave earlier or have a doctor's or dental appt- my employee will pay me up until the minute I leave the studio is that normal as a freelancer charging daily rate?

lesleyfurber
Apr 1, 2010
at 9:40 am

Hi, you would only be entitled to holiday pay if your company class you as a 'worker' not a freelancer. I'm going to reply in detail to your query by e-mail (from workline@freelanceadvisor.co.uk). Thanks, Lesley Furber

manorfan
Apr 4, 2010
at 11:56 pm

I work in a take-away, parttime every weekend during school and for the past 2 summers, 5 days/nights a week I was first there , there are 6 others working now, 1 just arrived in September 09, if week end hours are cut from 2 days to 1 day, have I anymore entitlements, the fact I was first there and I worked 2 days every weekend since I started

lesleyfurber
Apr 8, 2010
at 8:19 am

Hi, your rights are going to be partly dependant on your age as I guess your'e under the age of 18? Have a look at the Young People's section on the Direct Gov as this may be able to help you -http://www.direct.gov.uk/en/YoungPeople/Workandcareers/Yourrightsandresponsibilitiesatwork/DG_066272
Regards, Lesley

Steviek59
Apr 30, 2010
at 11:20 am

If I am rostered to work on a Bank holiday my employer pays me double time for the shift worked, or I can request that I take the Bank holiday at a later date, or I can ask not to work the Bank holiday and not get paid. If my shift starts a 22:00 and finshes at 06:00 is my employer required to pay me only double time for working from 22:00 – 00:00 only at double time even if my shift still has 6 hours to complete as my shift is 8 hours – If I work on the other two shifts 06:00 – 14:00 or 14:00 – 22:00 they would pay the whole shift at double time.

lesleyfurber
May 5, 2010
at 2:56 pm

hi, I'm going to reply by e-mail to your query as I have some questions to ask. Regards, Lesley

patriciamcginty
May 9, 2010
at 9:05 pm

Hi. I am a registered nurse, working for the N.H.S. We work 12.30hrs shifts. We are paid for only 11hrs. We are told we must take no more than 1.30hr break, of which is unpaid, which means we are not given any paid rest break.

Is there a legal requirement for the nhs to provide any PAID rest break?

lesleyfurber
May 12, 2010
at 9:06 am

hi, rest breaks during the working day (20 minutes rest is required in each 6 hours worked) can be either paid or unpaid depending on what it says in your contract of employment.

Have a look at the Direct Gov site for more information -http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10029451

Regards

Simon Osmond
May 21, 2010
at 11:12 am

I work as an assistant manager at a pub/nightclub, I am salaried to work 48 hours per week. If I sign an opt out agreement to work more than 48 hours a week, am I entitled to be paid for the hours I work outside my contract?

Lesley Furber
May 21, 2010
at 2:59 pm

hi Simon, that entirely depends on what is agreed about you working the extra hours, whether they will be paid or not. It may be regarded as unpaid 'overtime'. You know that you cannot be made to sign an Opt out and can always Opt back in at any stage if you are unhappy. If you have any more queries, or want further information then please contact me at workline@freelanceadvisor.co.uk. Regards, Lesley

Guest
May 23, 2010
at 3:52 am

My girlfriend has just started work as a waitress. she finished her second shift at 3am and was asked to start her third shift at 10 am the same day. Can the 11 hour rest break requirement be ignored/opted out of by an employer via the contract or is this a statutory requirement that must be adhered to regardless of other conditions?

dougie
May 23, 2010
at 6:43 am

we get 28 days a year holidays at easter we have friday and the monday and are allowed to take 4 days of our holiday entitlment we are now been told we must take the 4 days by end june and our 2 weeks summer holidays must be taken by end august where past years i would off used them all at christmas can my employer make us take our hols when he says

FreelanceAdvisor
May 26, 2010
at 8:43 am

this is becoming a popular little thread!

Mr T
Jun 1, 2010
at 11:36 pm

I have refused to opt out for this very reason. We get no over time or time in lieu of anything over 48 hours. My general manager has been fuming over this and keeps nagging me to sign it, as I'm sure my area manager will do. I am however going to stand by my decision. I've got no problem with working longer hours, I do however object very strongly to not being paid for it or getting the time back.

Angela Bradshaw
Jun 7, 2010
at 2:51 pm

I am contracted to work 40hours a week. My annual leave entitlement runs from April-March. I have just been informed by my employers taht no annual leave can be taken the last 2 weeks of March. Is this right?

tone
Jun 8, 2010
at 1:23 pm

Hi I work in a in a small recycling plant and have been told that I cannot take annual leave of two weeks during the school holidays with my wife and children. I have been granted one week. Am I entitled to take two weeks for our annual holiday as we did not want to take our children out of school proir ro the school holidays.

Lesley Furber
Jun 9, 2010
at 9:16 am

hi Angela, yes if you read above, your Employer can specify when you can or cannot take your annual leave, as long as they give you notice. Regards

Lesley Furber
Jun 9, 2010
at 9:41 am

hi your girlfriend needs to be given compensatory rest if the 11 hour rest break is broken. Regards,

Lesley Furber
Jun 9, 2010
at 9:38 am

hi, basically yes, as long as they give you notice of this – see above. Regards

Lesley Furber
Jun 9, 2010
at 9:33 am

I'm afraid a similar reply to those below – your employer can tell you when they want you to take your leave and how much, as long as they give you notice – see article above. Regards

Guest
Jun 9, 2010
at 12:16 pm

thanks, and my apologies for my lack of understanding, but what constitutes compensatory rest? if for example she gets the next two full days off after working the back to back shifts, does that satisfy the WTD?

Lesley Furber
Jun 10, 2010
at 9:00 am

hi, the easiest thing to do is work out her working hours over 7 days – she is due 1 full period of 24 hours off and then 11 hours between shifts – so if she's getting the next 2 full days off that could well cover it (i.e. would include the 24 hour period and possible they 11 hour break period)…. if you average it out over 7 days you should be able to see whether she is getting enough rest breaks. Hope that makes sense. Regards

been taking for a mug
Jun 12, 2010
at 5:07 pm

under my current terms and conditions i get paid double time on public holidays i tranfered under tupe and there now trying to take this off us saying its unlawful can you help me?

Hollowman Tom911
Jun 14, 2010
at 10:11 am

tom
work 3 days a week – am paid a freelance daily rate – I've been freelancing for over a year at the same company. Am I entitled to holiday/sick pay? I do sometimes have childcare issues when I have to leave earlier or have a doctor's or dental appt- my employee will pay me up until the minute I leave the studio is that normal as a freelancer charging daily rate.
Budget Travel

Hollowman Tom911
Jun 14, 2010
at 10:23 am

tom
this action proof to be a win, win situation. This is a true art work, which will be a success storywork 3 days a week – am paid a freelance daily rate – I've been freelancing for over a year at the same company. Am I entitled to holiday/sick pay?
Budget Travel

Lesley Furber
Jun 16, 2010
at 12:02 pm

Hi, can you e-mail me with more details so I can see I can help. Regards – workline@freelanceadvisor.co.uk

Lesley Furber
Jun 16, 2010
at 12:47 pm

You certainly are not entitled to sick pay or time off for child care arrangements as a freelancer, so it would be normal to be paid up until you leave the studio. With regards to Holiday pay – you can be entitled to Holiday pay if you are classed as a Worker (for the purposes of the Working Time Directive) but this will depend on your circumstances. Please e-mail me if you want more information. workline@freelanceadvisor.co.uk. Regards

DAS
Jun 22, 2010
at 9:00 am

When on holiday, are you permitted to work the rest days within that week?

Lesley Furber
Jun 24, 2010
at 6:53 pm

Can you e-mail me with more information on this? I'm not entirely sure what you mean. Regards, Lesley

Anonymous
Aug 21, 2010
at 10:00 am

Are holidays counted as weeekly rest days under the working time directive. If they are is there any legislation that states this?

Ilona
Aug 23, 2010
at 4:43 pm

Hi there, I have a question: We want to employ a graphic designer on a part-time basis (20hours per week) on a fixed term contract for a fixed period of month. My question is: Are they entitled by law to holidays at all?

Ilona
Aug 23, 2010
at 4:38 pm

Hi there, I have a question: We want to employ a graphic designer on a part-time basis (20hours per week) on a fixed term contract for a fixed period of month. My question is: 1) are they entitled by law to holidays at all?

Ilona
Aug 23, 2010
at 4:34 pm

weewt

Richard Burnell
Aug 24, 2010
at 9:00 pm

I have been working for a company for just over two months, I put a pass in for a previously booked holiday (back in March). The company suffered redundancies recently however, I was lucky enough to be kept on. Now I am being told that I may not have a job if I take holiday. Is this legal?

Anonymous
Aug 25, 2010
at 3:00 pm

hi RIchard, can you e-mail me at workline@freelanceadvisor.co.uk as I will need some more details before I can help. Thanks, Lesley, Workline

Anonymous
Aug 25, 2010
at 3:00 pm

hi, no holidays are distinct and seperate from weekly rest days. If you have any more questions please e-mail me at workline@freelanceadvisor.co.uk. Thanks, Lesley, Workline

micky
Aug 26, 2010
at 2:46 pm

I work in the care sector for which part of my shift is hourly paid for tasks to be completed and another part of the shift is for sleepover at a flat rate. My rota is continous ie 4on/4off permanent work. I am not a locum. My employer only pays me for the working part when I am on holiday and disregards the flat rate. This is a serious reduction in my normal monthly pay when I require for example a two week holiday. Instead of looking forward to a paid rest period, I have to budget for the ‘loss’ accordingly. As all my time is within the work place, I feel all hours are ‘working hours’ with regards pay and all hours should be paid for when on holiday. Any constructive feedback or entitlements would be appreciated.

many thanks

micky

Leave a comment



blog comments powered by Disqus
Share and Enjoy:
  • PDF
  • Twitter
  • Facebook
  • LinkedIn
  • FriendFeed
  • del.icio.us
  • Digg
  • StumbleUpon
  • Technorati