Working Time and Minimum Wage Regulations

The working time and minimum wage regulations apply to nearly all businesses. The working time regulations are normally enforced by the Health and Safety Executive and the Minimum Wage regulations by HMRC and you need to keep records to show compliance with the regulations. There can be severe penalties for breach of the regulations.

The 48 hour working week

The starting point is that workers have a statutory right to a maximum average working week of 48 hours.

• The average is worked out over a 17 week reference period, with 26 weeks in some cases or 52 weeks by agreement and can be calculated on successive 17 week periods rather than a rolling basis if the worker agrees. Holiday and sickness need to be taken into account, so a worker cannot be expected to work double following a weeks holiday.
• Working hours include all time at the employer's disposal including training and being on standby. However lunch, travel to and from work and being free to do leisure activities while on standby do not count as working hours.
• The rules do not apply to the self-employed and a few other areas such as junior doctors and the police.
• The rules do apply to temporary workers.
• Workers can opt-out of the 48 hour limit by a written agreement but cannot be forced or pressured to do so.

Rest breaks and leave

Workers are entitled to...

1. On every shift over six hours a minimum 20 minute break which in some circumstances can be accumulated but is increased to 30 minutes if under 18 and the period is more than four and a half hours.
2. 11 hours (12 hours for under 18's) consecutive rest between shifts each day which again can be accumulated in some circumstances.
3. One day off each week (2 days for under 18's) or two days off every fortnight which again can be accumulated in some circumstances.
4. From 1 April 2009 5.6 weeks (28 days) paid annual holiday based on the workers average pay which can include bank and public holidays. These amounts accumulate pro-rata from the day they start working and is worked out on a pro-rata basis for part time employees. From 1 April 2009, payment in lieu cannot be provided for anything less than 5.6 weeks. The holiday pay must also be paid when the holiday is taken and not added to say an hourly rate when work is done.
5. There are special rules for night workers who regularly work at least 3 hours during the night which is a period of at least 7 hours including from midnight to 5am and usually from 11pm to 6am. They should not exceed eight hours in each 24 hour period averaged over 17 weeks although if the work involves special hazards or physical or mental strain this is the case in every 24 hour period.

The National Living Wage and National Minimum Wage

The National Minimum Wage (NMW) affects all businesses without exception.

The compulsory National Living Wage (NLW) is the national rate set for people aged 25 and over. The NLW is enforced by HMRC alongside the NMW, which they have enforced since its introduction in 1999.

Generally all those who are covered by the NMW, and are 25 years old and over, will be covered by the NLW. These include:

• employees;
• most workers and agency workers;
• casual labourers;
• agricultural workers; and
• apprentices who are aged 25 and over.

The NMW is the minimum pay per hour that most workers are entitled to receive by law. The rate to which they are entitled depends on a worker's age and whether they are an apprentice.

NMW rates from 1 April 2020 are as follows:

• £8.72 for over 25 year olds;
• £8.20 for 21-24 year olds;
• £6.45 for 18-20 year olds;
• £4.55 for under 18s; and
• £4.15 for apprentices.

Payments that must be included when calculating the NMW are:

• income tax and NICs;
• wage advances or loans and repayments;
• repayment of overpaid wages;
• items that the worker has paid for but which are not needed for the job or paid for voluntarily, such as meals;
• accommodation provided by an employer above the offset rate (£7.55 a day or £52.85 a week); and
• penalty charges for a worker's misconduct.

Some payments must not be included when the NMW is calculated.

These are:

• payments that should not be included for the employer's own use or benefit, for example if the employer has paid for travel to work;
• items that the worker has bought for the job and has not been refunded for, such as tools, uniform, safety equipment;
• tips, service charges and cover charges; and
• extra pay for working unsocial hours on a shift

Entitlement

There are a number of people who are not entitled to the NMW, including:

• self-employed people;
• volunteers or voluntary workers;
• company directors; and
• family members, or people who live in the family home of the employer who undertake household tasks.

All other workers including pieceworkers, home workers, agency workers, commission workers, part-time workers and casual workers must receive at least the NMW.

It is not possible to opt-out from the national minimum wage.

How we can help you

If you need any further assistance with the working time regulations and national minimum wage please contact us.