Compensatory Rest

The law relating to maximum working hours and minimum hours of rest are set out in the Working Time Regulations 1998 (WTR). The provisions within the Regulations are considered to be a combination of both employment and health and safety requirements because they seek to ensure that employers do not attempt to have their workers at work for excessively long hours which can impact on their physical and mental welfare.

Thankfully for employers, the Regulations acknowledge that, sometimes, it may not be possible for the strict rest period provisions to be stuck to in order for an organisation to run smoothly. Employers must generally ensure that their adult workers have:

  • A 20 minute break where their working hours are more than 6 hours;
  • An 11 hour rest period in a 24 hour period (generally this means 11 hours from when the employee is deemed to stop working on one day and start again the next day);
  • A 24 hour weekly rest period which can either be taken as one 24 hour period per 7 days; or as one 48 hour period per 14 days.

But what happens when employees have atypical working patterns, or have to work through a break, or their break is interrupted by urgent business? In these cases, where ‘special case exemptions’ apply, the rest provisions can be overridden. This is different to a worker’s ability to opt out of the maximum working week of an average 48 hours, which they can do in writing.

Amongst the special case exemptions are:

  • where the worker’s activities are such that his place of work and place of residence are distant from one another, including cases where the worker is employed in offshore work;
  • where the work involves security and surveillance activities requiring permanent presence;
  • where the worker’s activities involve the need for continuity of service, as may be the case in hospitals, prisons, airports, radio, television or the production of electricity, gas and water;
  • where there is a foreseeable surge in activity e.g. tourism, agriculture etc
  • where something happens which is unusual and unforeseen, beyond the control of the employer, or an accident or imminent risk of an accident.

Shift workers can also be required to forgo their 11 hour daily rest, and 24/48 hour weekly rest where their shift pattern is such that they cannot fit the break in between their shifts. This also applies when work is portioned into periods which are split up over the course of a day.

When the rest breaks are compromised, the employer must ensure that the worker gets compensatory rest. This means that the worker must be allowed to take the amount of break or rest period missed at the next available opportunity. For example, if a workers missed 3 hours of their daily rest period because they had to attend work early, they should have that 3 hour rest period after they have finished work that day, in addition to the 11 hours that they are entitled to for that day.

In exceptional circumstances where it is not possible, for objective reasons, to provide compensatory rest, ‘appropriate protection’ must be provided, which could include various different measures such as looking at the way work is structured during the day, to providing health checks.

Suggested Resources