Working in the hospitality and leisure industry can involve long hours and evening work. Particularly at busy times, like Christmas and New Year, staff are likely to be asked to work longer hours and often miss breaks. Hotels and restaurants, bars and clubs obviously need to be fully staffed at this time of year to ensure maximum profits – however, as an operator, you must be aware of your obligations under the Working Time Regulations.
The good news is that there is some flexibility built into the Regulations but make sure that you don’t fall foul of your obligations like Horatio Inns did recently. The pub company, run by Marco Pierre White, recently lost a Tribunal case brought by an assistant manager who alleged that the company had breached the working time regulations 15 times in 55 days and that the rota system he was given made it impossible to comply with the Regulations.
Tribunal claims are expensive to defend and it is best to plan your rotas and staffing ahead to ensure that you are complying with your obligations.
Who do the Working Time Regulations apply to?
The Regulations apply to “workers” who include:
- Someone who works under a contract of employment – i.e. an employee
- Someone who you pay a regular salary or wage, provide with work, control and pay tax and NI for. This includes part time and temporary workers, and the majority of agency workers.
The Regulations are likely to apply to all the staff that you use over Christmas, other than the genuinely self-employed.
Requirements of the Working Time Regulations
In essence the Regulations provide for the following:
48 hour week – there is a limit on working hours, this is an average of 48 hours per week over a prescribed ‘reference period’ of (usually) 17 weeks. There is flexibility here as a worker may work more than 48 hours in any one week, provided that the average weekly working time over the reference period does not exceed 48 hours. For example, your staff may well be asked to work more than 48 hours per week during December but you are then likely to be able to give them much shorter hours and more days off in January meaning that their average weekly hours over a 17 week period does not exceed 48. It is also possible for employees to opt-out of the 48 hour limit (see below).
Daily rest breaks – there is a right to a daily rest period of 11 consecutive hours between shifts. A barman who works until midnight should not start work again until 11am the following day. There is some flexibility in the legislation where a worker changes a shift pattern and is not able to take his full 11 hour break before starting the new pattern. If the working day is longer than six hours there is also a right to an uninterrupted rest break of 20 minutes during the six hour period. This may not be given at the beginning or end of the working day. For most staff their meal break will be 20 minutes or more and will satisfy the requirements of the Regulations. You will need to consider each worker individually; for example if a waitress starts her shift at 6pm but is expected to have eaten before she starts work, then works until midnight, she will be entitled to a 20 minute break during the evening. You may find that if you do not pay staff during their breaks they are reluctant to take them. You should ensure that they do take the required breaks as the Regulations were introduced as a health and safety measure.
Weekly rest break – there is a right to an uninterrupted rest period of not less than 24 hours each week or one uninterrupted rest period of 48 hours over a 14 day period. Over Christmas staff could work 12 days but must then have 2 days off. NB There is no ability for an individual worker to opt-out of the rest break provisions, although the provisions can be varied by a workforce agreement, which includes provision for compensatory rest to be given.
Night work – if you have staff who work, as a normal course, more than 3 hours between 11pm and 6am then they are classified as “night workers” under the Regulations. This is likely to apply to your late night barmen or night porters but will not apply to a waitress who usually finishes her shift at 1am but occasionally runs over until 2am. Night workers must not work more than an average of 8 hours in a 24 hour period. Night workers must receive a free health assessment before starting night work and at regular intervals after that.
You are required to take all reasonable steps to ensure that staff do not work more than 48 hours per week. However, if you have good business reasons for requiring staff to work longer hours on a regular basis then the Regulations allow you to agree with an individual in writing that the 48 hour limit will not apply to them. Staff must be able to withdraw their consent to the opt-out by giving the period of notice specified in the written agreement. It is not possible for individual staff to opt out of the rest break or night work provisions.
Young workers are those over school leaving age but under 18. If you employ a young kitchen porter or someone to wash up over Christmas or during school holidays then you should be aware that the limits which apply to young workers are slightly different. For example, working hours are limited to 8 per day and 40 hours per week. Young workers are required to take a rest of 30 minutes if they work for more than 4.5 hours per day and to take 12 hours rest in each 24 hour period. They must be given 2 days off each week and they are not permitted to sign an opt-out (see above). Young workers cannot work between 10pm and 6am or 11pm and 7am.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.