Can you opt out of the working time directive?

The government sets maximum weekly working hours and rules on breaks to keep workers and employees safe and rested. Employees can work longer than this by opting out of the working time directive, but there’s a formal process you need to follow as an employer.

Crucially, the agreement to waiver the working time regulations must be in writing and specify how long the employee wants to opt out for.

This guide covers the working time regulations in the UK, including what the law says about working time directive breaks and how to opt out. Keep reading to make sure you’re complying with the law.

What is the working time directive?
Working time directive breaks
Working time directive opt out process
Working time directive for HGV drivers

What is the working time directive?

The working time directive (also known as working time regulations) relates to the maximum weekly working hours an employee can work on average during a 17-week period. This includes regulations for breaks and annual leave, and is set out in the Working Time Regulations Act 1998.

Working time directive breaks – how long to rest?

The law covers statutory rights for workers around how long they can work. This covers breaks during the working day, rest breaks between shifts, and the amount of rest during a week. You should also make sure you follow annual holiday entitlement rules.

Employees and workers have a right to:

a maximum of 48 hours work a week
5.6 weeks of paid annual leave
11 consecutive rest hours in every 24 hour period
20 minute rest breaks for working days longer than six hours
at least one day off per week (or two days off every fortnight)

It’s up to you as an employer if you want to also offer a lunch break and other breaks – and whether these are paid breaks or not. This should be detailed in a worker’s employment contract.

Bear in mind that you also need to agree to reasonable adjustments for a disability and have a responsibility to look after all workers’ occupational health.

Working time refers to time spent performing a role. This can include training and travelling, if it’s visiting clients or related to performing the job – but not travelling to and from the workplace.

Specific rules for some jobs

The rules on breaks may not apply to every job, as working patterns may not allow for it. There are specific rules for these types of employment:

shift workers – due to varied work patterns, sometimes there won’t be enough time between shifts
night workers – they can’t work longer than an eight hours over a 24-hour period
young workers – for their protection, they must have 12 hours between shifts
jobs with different breaks rules (stated above)

Employers should take appropriate steps to make sure their employees are compensated for any missed breaks.

Maximum hours allowed to work in a day

The working time directive doesn’t specify a maximum number of hours adults can work in a day – it’s averaged over a week.

That said, workers under the age of 18 can’t work more than eight hours in a day or 40 hours in one week.

Why the 48-hour week limit exits

The working time regulations and the statutory 48-hour work limit exist to protect the health and safety of workers.

Not having enough breaks can be damaging to people’s mental and physical health. It can also be dangerous or lead to mistakes at work.

If an employee agrees to work more hours, it’s important that you have a copy of the agreement in writing to make sure you’re compliant with the law.

Who does the working time directive apply to?

Workers have the same right to rest regardless of whether they’re an employee, agency worker, apprentice, casual or seasonal staff, doctor in training, or zero-hour worker.

Working time directive opt out process

If you’ve agreed any variation to these statutory rights with your employees then this will be detailed in a workforce agreement, for example when it comes to night time working and rest periods.

However, it won’t apply to employees whose terms and conditions are covered by an existing ‘collective agreement’ (such as an agreement negotiated with a trade union, which can also adjust these working time matters).

You should publish the workforce agreement for your business in writing and make it available to all employees. It will apply either to all employees, or to employees in a certain group. A working time directive opt out template gives you a basis for creating your own agreement.

It’s important to remember, though:

your employee must be over 18
employees can choose what elements of the working time regulations they want to opt out of (apart from annual leave entitlement)
this must be voluntary and signed in writing by your employee
opting out can either be for a fixed period of time or indefinitely
some businesses draft a separate workforce agreement for night workers

A voluntary opt out agreement

Employers can ask employees to work more than 48 hours in a week but this is a voluntary agreement, so you can’t dismiss your employee or treat them unfairly if they refuse.

Employees can also choose to opt out if they want to work more hours, depending on the job they do (more on this below). Again, this needs to be agreed in writing.

You and your employee can terminate the 48-hour opt out agreement at any time by each giving sufficient notice – the government website says that employees need to give you seven days’ notice, but with written agreements they might need to give you more notice (up to three months).

It’s important to keep a record of all workers who have opted out of the statutory working hours.

Who can’t opt out of the working time directive?

Some staff aren’t allowed to opt out of working time regulations because of the job they do. This includes:

airline staff
a worker on ships or boats
a worker in the road transport industry, e.g. delivery drivers (except for drivers of vehicles under 3.5 tonnes using GB Domestic drivers’ hours rules)
other staff who travel in and operate vehicles covered by EU rules on drivers’ hours, e.g. bus conductors
a security guard on a vehicle carrying high-value goods

Working time directive for HGV drivers

The Road Transport (Working Time Regulations 2005) cover additional rules for drivers of heavy goods vehicles (HGV) and passenger carrying vehicles (PCV).

They also need to follow the drivers’ hours rules, which relate to how long you can spend behind the wheel.

The drivers’ working time directive says that HGV and PCV drivers can’t:

exceed an average of 48-hour working time hours a week, usually over a 17 or 26-hour period (and they can’t opt out of this)
exceed 60 working time hours in one week
exceed more than 10 working hours at a time, if working at night

What is the HGV working time directive 6 hour rule?

HGV drivers can’t work for more than six hours without a break, and the minimum break period depends on how long they’ve been working:

if working between six and nine hours in total – breaks should be at least 15 minutes, with a 30 minute break
if working more than nine hours in total – breaks should be at least 45 minutes

Drivers also have specific obligations for resting. Read about working time directive breaks for HGV drivers and PCV drivers.

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Working time directive breaks – what are the rules on breaks at work?