Drivers of vehicles subject to the GB domestic drivers’ hours’ rules or who are an occasional mobile worker (see definition below), are affected by four provisions of the Working Time Regulations 1998.
These are:
The reference period for calculating the 48-hour average week is normally a rolling 17-week period. However, this reference period can be extended up to 52 weeks, if this is permitted under a collective or workforce agreement.
Opting out of the 48 hour week
You can choose to work more than 48 hours a week on average if you are over 18. This is called ‘opting out’.
Your employer can ask you to opt out, but you cannot be sacked or treated unfairly for refusing to do so.
You can opt out for a certain period or indefinitely. It must be voluntary and in writing.
Example of opt-out agreement:
I [worker’s name] agree that I may work for more than an average of 48 hours a week. If I change my mind, I will give my employer [amount of time – up to 3 months’] notice in writing to end this agreement.
Signed…………………………………… Dated…………………………………….
Workers who cannot opt out
You cannot opt-out of the 48-hour week if you are:
Cancelling an opt-out agreement
You can cancel your opt-out agreement whenever you want – even if it’s part of your employment contract.
You must give your employer at least 7 days’ notice. You may have to give more notice (up to 3 months) if you have a written opt-out agreement.
Your employer cannot force you to cancel your opt-out agreement.
Entitlement to paid annual leave
Entitlement – The law that sets the UK annual leave entitlement is the Working Time Regulations 1998 (‘the Regulations’). In simple terms, all workers, except those who are genuinely self-employed, are legally entitled to 5.6 weeks’ paid holiday per year. An individual is generally classed as a worker if he or she has a contract of employment. The 5.6 weeks equates to 28 days of leave per year for someone who works a five-day week. Part-time workers are entitled to the same amount of holiday (pro rata) as full-time colleagues.
Workers are entitled to the following types of annual leave:
Together, regulation-13 leave and additional leave make up ‘statutory leave’, which is usually included in the annual leave entitlement and will be set out in an employee’s written contract. However, legally ‘contractual leave’ means any leave in the contract over and above statutory leave.
There is no legal right to paid public holidays, but the worker’s contract should state if they are to be paid for these holidays. If paid, they can be counted as part of the statutory 5.6 weeks of holiday, but employers can provide them in addition, if they so choose.
Accrual – As soon as a person starts working, he or she will begin to accrue leave. The holiday entitlement is not affected by maternity, paternity or adoption leave. The employee still builds up or accrues holiday over these periods.
Gov.uk has a holiday entitlement calculator to help work out what annual leave is due if an employee starts partway through the year and what leave someone has left if the employment is terminated (https://bit.ly/1picPiR).
Adequate rest
Adequate rest is defined as being long and continuous enough to ensure that workers do not harm themselves, fellow workers or others and that they do not damage their health in the short or long term.
When considering the requirement for ‘adequate rest’ under the 1998 Regulations, employers need to take into account, not only the GB domestic drivers’ hours rules (which set maximum limits; which are only intended to give the industry some flexibility and should not be regarded as normal working patterns), but also the duty on employers, under health and safety at work legislation, to manage the risks of fatigue.
The Health and Safety Executive (HSE) has published guidance on this issue, as per the links below to further relevant guidance on their website:
Whilst mobile workers regulated by the 1998 Regulations can opt out of the 48-hour weekly average working limit, an employer cannot opt out of the requirement that workers get adequate rest. Therefore, employers are required to ensure that workers who have opted out of the 48-hour weekly average do not work excessively long hours and take regular breaks.
Employers might also want to take into account; as best practice, the break and rest requirements in the sector specific working time legislation, which is applicable to drivers in scope of the EU drivers’ hours rules see Working Time Directive in the Drivers Hours Rules section.
Employers must take responsibility for determining what constitutes ‘adequate rest’ for each of their workers, which can differ dependent on a number of factors, such as: their age; health; personal circumstances; outside influences; type of work (mentally or physically strenuous) etc. to determine all the potential risks and impacts on that worker’s fatigue level. Compliance with the drivers’ hours and working time rules alone is insufficient to manage the risks of fatigue.
The 1998 Regulations do not apply to self-employed drivers (see text box below for definition). Please note that this definition is different to the one used under the 2005 Regulations.
DVSA enforces the working time limits and the requirement for health checks for night workers under the 1998 Regulations for drivers operating under the GB domestic drivers’ hours’ rules (and occasional mobile workers).
Any questions about matters relating to rest or annual leave, call the ACAS national helpline on 0300 123 1100, for free support and advice.
Further information
For further details on the 1998 Regulations, use the link below to contact the Department for Business, Energy and Industrial Strategy at Contact BEIS – GOV.UK (www.gov.uk)
Definition of self-employed under the 1998 Regulations
You are self-employed if you are running your own business and are free to work for different clients and customers.
Source – DVSA
