Working Time Regulations: opting out

18 Jul 2023

The Working Time Regulations (WTR) are a set of laws that govern the hours of work, rest breaks, and annual leave entitlements for employees. While most workers are covered by these regulations, there are some exceptions and special circumstances where individuals or groups may be able to opt out of certain duties, such as hours worked.

Here are a few examples:

Senior management or directors: individuals who occupy executive or senior management positions often have a greater degree of flexibility in their working hours. As such, they may be exempt from certain provisions of the WTR.

Armed forces, police, and emergency services: members of the armed forces, police officers, and emergency service personnel may have different working arrangements due to the nature of their roles. These professions often require working irregular hours, including night shifts and extended periods without rest breaks.

Healthcare and social care: some healthcare and social care workers, such as doctors, nurses, and those providing round-the-clock care, may be subject to specific provisions that deviate from the standard WTR requirements. This is to ensure the continuous provision of essential services.

Transport industry: certain roles within the transport industry, such as airline pilots, commercial drivers, and train operators, may have their working hours and rest periods regulated by industry-specific legislation. In some cases, these regulations may differ from the standard WTR provisions.

It's important to note that even in cases where individuals or groups can opt out of certain aspects of the WTR, there are usually safeguards in place to prevent exploitation and ensure workers' rights are protected. Employers must adhere to specific rules and guidelines to maintain a balance between work and rest for their employees.

How do employees know if they can opt out?
Determining whether an employer or employee can opt out of the WTR requires careful consideration of specific circumstances and legal advice. Here are some general guidelines on how employers and employees can assess whether opting out is applicable:

Review employment contracts: employers should carefully review the terms and conditions of employment contracts to determine if there are any provisions regarding opting out of the WTR. Contracts may explicitly state the option to opt out or include provisions related to specific industries or job roles.
Examine industry-specific regulations: some industries, such as healthcare, transportation, emergency services, and the armed forces, have their own regulations that may override or modify certain provisions of the WTR. Employers and employees in these sectors should familiarise themselves with the relevant industry-specific regulations to determine if opting out is permitted or required.
Consider collective agreements: in some cases, trade unions or employee representatives negotiate collective agreements with employers that may include provisions allowing for the opt-out of certain aspects of the WTR. Both employers and employees should refer to any applicable collective agreements to ascertain the scope and conditions of opting out.
Comply with legal requirements: employers must ensure that any opt-out arrangements comply with legal requirements. For example, employees must provide their agreement to opt out voluntarily and in writing. There may also be limitations on the number of hours an individual can work even if they have opted out of certain provisions.

Read HSE guidance on opting out here.

Writing an opt-out agreement
In order to permit an element of individual choice, Regulation 5 of the WTR provides that an individual may agree to work more than the 48-hour maximum. Such an agreement:

Must be in writing;
May relate either to a specified period or apply indefinitely; and
Shall be terminable by the worker with seven days’ notice to the employer (unless the agreement itself provides for a longer notice period of termination not exceeding three months).

Once signed, any dispute about an agreement should be resolved through normal dispute resolution procedures including the involvement of an Employment Tribunal or ACAS as appropriate.

When considering opt-outs, the following should be noted:

The opt-out only applies to the weekly working limit. The remainder of the Regulations still apply.
This is only an agreement to work more than the 48-hour maximum. The worker should still only work an average maximum of 78 hours per week since the Regulations provide for a minimum of 90 hours per week rest.
Young workers cannot opt-out of the working time limits.
If the worker has more than one employer, they will have to agree an opt-out with each of their employers.
Employers have to keep records of their employees who have signed an opt-out. A list of names should be sufficient to comply with this duty: there is no need to record the hours worked by these employees.

Further HSE guidance on the Working Time Regulations is available here.