Some jobs are just too demanding for the normal 48-hour working week rules to apply, making it necessary for employers to ask their workers to waive this restriction through a 48 hour opt out agreement.
Under government legislation, workers over the age of 18 cannot be told to work more than 48 hours per week, which can be averaged over a 17-week period in a system designed to protect people from over working.
However, there are instances where the necessity to work beyond these hours is paramount, particularly in emergency situations or during busier periods in the year when demand is exceptionally high.
Rather than being unable to meet these demands, employers can request their employees sign a 48 hour opt out agreement, but the decision to do this is at the employee’s discretion and it is illegal to force them to waive this right.
Workers can legally put in more than 48 hours in a week so long as the average over the 17 week duration remains at 48 hours or less.
Before getting an employee to sign a 48 hour opt out agreement, it is first worth noting whether you are already operating under circumstances where the law is not applicable.
For instance, the limit does not apply to jobs in the emergency services, armed forces and in some instances, the police. Domestic help in a private home might also be exempt from this rule, as well as those in sea faring roles such as fisher men and vessel crews.
So if these exemptions do not apply to the role your employee is in, then the only way to legally allow them to work for more than 48 hours in seven days is to have them sign the 48 hour opt out agreement.
Just as it is the employee’s decision to sign the waiver, it is also their prerogative to cancel the opt out agreement whenever they choose, though they must give you a minimum notice period of seven days before they can reduce their hours.
It is also possible to agree a longer cancellation period with the employee before they sign the opt out agreement so that they are required to give you up to three months' notice.
Of course, the definition of work extends beyond the main duties of the role to other areas which come under the 48-hour restriction.
These include job-related travel, training and working lunches, as well as paid and some unpaid overtime.
The duration can also extend to work conducted abroad by the employee and always entails on-call hours the employee puts in.
Instances that are not covered under the 48-hour restrictions are lunch breaks unrelated to the job, normal travel to and from work and general travel outside of normal working hours.
A candidate pursuing evening and day-release classes not related to work cannot put these into their working hours either, nor can the time they spend on-call outside of the workplace.
If an employee volunteers to work for longer, such as to complete an ongoing project, this will not count towards the 48 hour quota and neither will paid or unpaid holiday.
Restrictions on employers of people under the age of 18 are tighter so it is worth pointing out there is no opt out option for younger workers.
They are generally only allowed to work eight hours per day, completing no more than 40 hours in one week.
For more information on getting a 48-hour opt out in writing and to download a template, please see Lawpack’s solicitor approved Working Time Regulations 48-Hour Opt Out Agreement.
Published on: March 23, 2012