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Doesn't that legislation say you are ENTITLED to 11 hours rest, not that its compulsory. So its upto the individual if they take those 11 hours or not?
NOpe - its mandatory. YOu cannot opt out of it. that is very clear
Nope – you cannot opt out of the 11 hour rest period
but millions of people do.
in my industry that goes out the window. i have done 24 hr stints before or sat around from 9am to 11pm waiting for film crew to finish to start shooting stills (a days work).
film and TV is often unionised but sometimes has compulsory opt outs where you will not get the job unless you agree to work “12 for 10” though the overtime is often set to Bectu union rates and they have agreed rest periods. but for small productions what are you going to do? say no while everyone else gets up to shoot at dawn then has a break and shoots at sundown then up again at 4am for the next morning shoot? that mortgage needs to be paid.
that said, when i’m running the show i’m quite militant as i know productivity goes down the pan after 10 hours and would rather extract more production costs from client and carry on after a nights sleep.
i’m sure its the same for other industries like events or building stands at trade shows overnight then having to do a take-down and travel across countries to set up again.and lots of other industries that dont involve being sat in an office twiddling spreadsheets.
And if you do ... you are breaking the law ?
So as an individual you could be prosecuted ??
So as an individual you could be prosecuted ??
Yeah...by this guy....
Pretty sure TJ is correct. Clue is in the wording. ENTITLED to 11 hours UNINTERRUPTED rest.
I'm not sure how On Call effects this, however if you are expected to work on call (phone calls or go back to work premises) depending on the length of time this is ("5 min phone call, I'll go home 5mins early tomorrow is reasonable") you should have a company policy somewhere saying what you can do.
Eg. I am never 'on call' but nature of my job, electricity supply industry, I may get a call, to my work mobile, 24/7 365 days a year, by the standby man (who is on call and paid for it). I do not HAVE to answer, but if I do and I return to work (which I would as if MY phone goes I'll have to fix/investigate) Policy states that I can turn up to work late the next day, where appropriate (time of call, length of work etc) as 'sleeping in time' to ensure that while not uninterrupted, I am sufficiently rested if its a work day next day. If it is a non-work day next day, I am paid more overtime rate to reflect this.
Edit: fat fingers...
The opt out is for the 48hr average working week over the time period specified by your company, most use 17weeks.
NOpe – its mandatory. YOu cannot opt out of it. that is very clear
Where is it "very clear"?
Cougar - in the statue, in the case law, in all the advice for both employees and employers. NO doubt at all
As above there are some exceptional circumstances allowances but these are quite tight as well
Mr Smith - I think some of what you describe would be covered by the exceptional circumstances stuff - so is OK so long as you get the compensatory rest afterwards ie only get 6 hours off in one 24 hour period you must have 16 in the next 24 hour period
However - I have no reached the limits of my knowledge on this. Its getting into quite arcane areas and I cannot find any hard data on the various sites I use for advice
One thing that is clear is that the more employees allow employers to get away with it the more pressure will come on you to ignore the provisions. JOin a ruddy union! Hold on to your rights so they are not taken away. Of course once we are out of the EU the tories will remove these rights - they hae said as much
Ro5ey - I doubt an employee would be prosecuted. An employer is more likely to be but I think warnings and being told to sort your procedures out is likely to be first action
Cougar – in the statue, in the case law, in all the advice for both employees and employers. NO doubt at all
You're quite keen on things being absolute when they're not necessarily so! It's not clear to me at all, the legislation - certainly the short section I linked to anyway, I've not read the whole thing beyond a quick skim - just says "entitled." So an employer couldn't refuse the time off or coerce you into not taking it, but I've not yet seen anything that says you can't choose to take less rest time under your own volition.
Have you got a link to something that says that actually taking it is mandatory?
The piece and link I provided before state you can opt out of the 48 hr provision. the rest of the WTD there is no opt out.
There are exceptions for particular circumstances but not for general use.
These regulations give most workers the following rights:
a 48-hour limit on the maximum working week; workers may opt-out and work longer
a 48-hour limit on the maximum working week for night workers; no opt-out is possible
an eight-hour daily limit on night work involving hazards or physical or mental strains
free health checks for night workers
5.6 weeks’ paid leave a year
one day off per week
11 hours’ rest per day
a 20-minute break if working more than six hours a day.
From the TUC
Workers are entitled to a daily rest period of at least 11 consecutive hours in each 24-hour period during which they work. It is not necessary for the 11 hours to fall in the same calendar day provided that they are consecutive.
From an employment law specialist
The Working Time Regulations 1998 (SI 1998/1833) specify minimum rest break and daily and weekly rest period entitlements for adult workers aged 18 and over, and for young workers under the age of 18 but above compulsory school age.
Under the terms of a collective or workforce agreement, the right of adult workers to rest breaks and rest periods can be varied, so long as the employer undertakes to provide equivalent periods of compensatory rest. However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers can take their rest breaks.
https://www.xperthr.co.uk/faq/can-workers-opt-out-of-rest-breaks/92439/
The fact that I can’t “opt out” of my entitled rest periods just means my employer cannot contract me to work, or insist that I do, beyond what I am entitled to.
But I am an adult, and I can opt out if I choose to. I worked until 11pm last night at home dealing with emails from clients, and was in the office at 7.15 this morning, that’s not illegal, as it was purely my choice.
I opted out of having my 11 hours rest time because it suited me to do so.
the rest of the WTD there is no opt out.
There is no opt out for the entitlement. That doesn't mean you can't opt out of actually taking the break, that's not what it says. It's the entitlement which is mandatory, everything you've just posted there says an employer has to ensure that workers CAN take breaks, not that they MUST.
Like, I'm legally entitled to 20-odd days holiday per year. If I get to December and I've not taken them, does that mean I have to take the month off?
... and for the purposes of "arguing on the Internet" clarity, I'm not saying I think you're definitely wrong. I just don't think that from what you've posted so far it's as remotely clear or obvious as you're insisting it is from the way it's worded.
However, workers cannot opt out of statutory minimum rest entitlements
From the HR advisers to employers as above
And yes - you have to take your holidays - thats been tested in court. You cannot have them as pay instead.
Many employers and employees ignore the law but it is clear. Working time directive is mandatory bar the opt out that only the UK has on the 48 hour week. You cannot opt out of the other provisions of the WTD.
Cougar - the only opt out is for the 48 hour maximum. there is no opt out available for the 11 hour rest period ( bar some special circumstances and compensatory rest applies)
Sorrry Neal - that is in clear breach of the WTD
If you cannot opt out of it as is clear from the stuff I have posted then yes - you are breaking the law.
an opt out means yo have agreed to something. there is no provision to opt out of the 11 hour rest period.
this stuff is there to protect you and the general public.
Cougar - is this clear enough for you? I think I have already quoted it
Can workers opt out of rest breaks?
The Working Time Regulations 1998 (SI 1998/1833) specify minimum rest break and daily and weekly rest period entitlements for adult workers aged 18 and over, and for young workers under the age of 18 but above compulsory school age.
Under the terms of a collective or workforce agreement, the right of adult workers to rest breaks and rest periods can be varied, so long as the employer undertakes to provide equivalent periods of compensatory rest. However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers can take their rest breaks.
https://www.xperthr.co.uk/faq/can-workers-opt-out-of-rest-breaks/92439/
Your employees must be given at least 11 consecutive hours of daily rest and at least 24 hours of uninterrupted weekly rest every 7 days, over a reference period of 2 weeks.........................
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.
.
.
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This opt-out only applies to the 48 hour limit, not to the other working time rules.
However, workers cannot opt out of statutory minimum rest entitlements
However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers can take their rest breaks.
And yes – you have to take your holidays – thats been tested in court. You cannot have them as pay instead.
At work I can buy or sell up to five days holiday days per year. I can carry over up to five into next year (though this might be affected if I buy / sell, I can't remember exactly). Any that I don't take beyond that are simply lost. I don't get just kicked out of the building for weeks, that'd be daft.
I mean, it's possible that my employer is breaking the law here but I highly doubt it.
Your employees must be given at least 11 consecutive hours of daily rest and at least 24 hours of uninterrupted weekly rest every 7 days, over a reference period of 2 weeks…………………….
Still doesn't say "must be taken," does it.
I take part in the on call service at work, if I get called out before midnight, I'm expected in at the normal start time the next day, 8 or 8:45am.
If the call goes over midnight, I get compensatory rest until 11am, if there's two calls after midnight, I get rest until 1pm.
So I could get called in until 11:55pm (after already doing a twelve hour day) and be expected in at 8am the next day.
I could get called and be out until 5am and be expected in at 11am.
To be clear, this does mean answering the phone and going into work for an hour (usually.) For some people this will involve a good hour of commuting as well.
Under AFC rules, compensatory rest actually comes out of our annual leave entitlement, but we are fortunate to have a local agreement in place that means this isn't the case.
This is NHS by the way.
However, workers cannot opt out of statutory minimum rest entitlements on an individual basis. Employers must make sure that workers [b]can [/b]take their rest breaks.
My employer expects me to work 8 - 5 weekdays.
They have ensured I [b]can[/b] take my rest breaks.
I have chosen not to.
Which law is being broken and who is breaking it ?
Cougar - the european site quoted is very clear. NO opt out is available and rest MUST be given
Neal = Working time directive is being broken and you are both breaking it. Dunno what the actual statue is called. there is no opt out, you cannot chose to not take the 11 hours rest. Its mandatory ( with exceptions as outlined and compensatory rest is due)
OK - I am done with this and Cougar - as a mod you really should not be encouraging me to argue excessively 😉 ( unless you are trying to get me banned! BTW - is your surname Machiavelli?)
TJ, everything you've posted on this page is what the employer must offer, and a clause that says that an employee cannot choose to waive their rights (like, for instance, signing an employment contract which says they don't want it). No matter how often you copy and paste the same text there is nothing, anywhere, that I can see which says that an employee is obliged to exercise those rights if they don't want to.
You cannot chose to not take the 11 hours entitlement to rest, presumably to prevent being coerced into accepting unfair / potentially dangerous contract terms.
As a mod I couldn't give a toss about you arguing with me personally. (-: If we get a definitive answer then, well, it probably won't all be worth it but at least we'll know. Tell you what, I'll ask our HR bods tomorrow.
I think the quote from the EU site is pretty definitive. No opt out and must be given
If you do not take it you are opting out
If you do not take it you are opting out
I think that is where the issue lies.
Your misunderstanding of what “opting out” is.
In another job I opted out of the 48 hour max week. This involves signing forms etc. Saying i was opting out of my rights etc.
Those forms allowed my employer to contract me to work over 48 hours per week without breaking the law.
By choosing not to take the breaks offered to me by my employer, I’m not “opting out”
No employer can ask an employee to “opt out” of the 11 hour rest time and contract them to work shifts with shorter break periods.
This is what “no opt out option” means.
I can choose to work in my own time any number of additional hours I want without breaking any rules.
*slopes off for a fag*
Have you people never heard of the "sit down piss"?
Have you people never heard of the “sit down piss”?
How very uncouth.
In polite society we refer to a “China Cruise”
No Neal - its you that does not understand. 11 hours off is mandatory. Hence the use of MUST and No opt out
Still - if you think its right to let your employer take advantage of you thats up to you. However these regulations are here to protect us but if you do not want to be protected then I guess its up to you
there is no doubt at all tho that without that 11 hour break you are in breach of the WTD
This thread is making me want to start smoking again and I quit over twenty years ago.
11 hours off is mandatory
The ability to take 11 hours off is mandatory.
there is no doubt at all
... in your opinion.
Remember that 'binary' thing, TJ? You might well be right, but I don't know how else I can keep saying the same thing in slightly different ways for you to countenance the notion that you might not be.
This thread is making me want to start smoking again and I quit over twenty years ago.
I’ve never smoked even I’m considering it.
Because I have quoted the EU, HR experts, TUC, ACAS etc stating that is the position. If there is no opt out then you must have that rest time ( except in certain circumstances which do not apply to the vast majority)
Even if you do not for exigent circumstances have that 11 hour rest then you MUST have compensatory rest.
If there is no opt out then you must have that rest time
If there is no opt out then you must be allowed that rest time. Nothing you have quoted appears to be saying what you're asserting it's saying.
Actually, I'm going to step away from this for tonight. I get the impression I'm winding you up, and that's really not my intention. I'll check back in tomorrow.
If there is no opt out then you must have that rest time
There is no opt out, agreed.
This means employers can’t rota set working times that contravene the 11 hour rules, by asking employees to Formally opt out (as they can with the 48 working week)
Employees working extra hours by their own choice does not constitute “opting out” in the sense referred to in the regulations.
Opting out (as referred to in the regulation) is a formal written agreement that is available for the 48 hour max week. But not for the 11 hour break.
This means employers can’t rota set working times that contravene the 11 hour rules, by asking employees to Formally opt out (as they can with the 48 working week)
Yup that’s how we do it and late finishes mean they get 11 hours off so start late the next but are paid if they’d started on time.
We discourage anyone from breaking this rule but some are happy to come in for the sake of 30 minutes or so, the unions have never said they can’t just also discourage them.
Oh Christ now I’m involved.
I’ve never smoked even I’m considering it.
Same here, and I’m going straight onto Capstan lung rippers. Chained.
Spice anyone?
Hark at Perchy with his heirs and graces
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