The Working Time Regulations 1998 (‘the regulations’) govern the number of hours that your Personal Assistants (PAs) can work in any given period as well as other rights including their right to paid annual leave. You need to take account of the regulations when you are drawing up your staff rota, so you can ensure you have adequate cover to allow for appropriate rest breaks and holiday periods.
Introduction
What is ‘working time’?
‘Working time’ is the time spent by your PA:
‘Working, at your disposal and carrying out activity or duties related to their job’.
Lunch breaks and time spent travelling to and from work do not count as working time. Being ‘on call’ especially if the PA is on site does count as working time.
What is a ‘worker’?
The regulations apply to ‘workers’. Your PA is a ‘worker’ if they have:
- a contract of employment (‘employee’), or
- a contract for services (agency workers).
Genuinely self-employed people are not included in this definition.
An ‘adult worker’ is someone aged 18 or over. A ‘young worker’ is someone under the age of 18.
For more information about employing children and young people please see factsheet 7.3: Employing children and young people.
What rights do my PAs have under the regulations?
Adult workers have the following key rights:
- a 20-minute rest break if their working day is longer than 6 hours
- 11 consecutive hours rest in each 24-hour period
- 24 consecutive hours rest in each seven day period
- a limit of an average 48 hours a week on the hours they are required to work
- 5.6 weeks’ paid leave per year
- a limit on the normal working hours of night workers to an average of 8 hours in any 24-hour period and an entitlement to regular health assessments.
These rights are intended to protect your PA’s health and safety. It is important that as an employer you always act reasonably, treat your PA fairly and listen to their concerns.
Rest breaks
Your PA is entitled to rest breaks during their working day and between their shifts. The health and safety of your PAs should be your priority. You must allow them regular breaks and never overwork them. You should actively encourage your PAs to take their breaks.
Rest breaks during shifts
Adult workers are entitled to a 20-minute rest break when they work more than six hours per day. They are entitled to spend this rest break away from the workplace. The rest break must not be at the end of the shift i.e. they cannot simply finish their shift early.
Young workers are entitled to a 30-minute rest break when they work more than 4.5 hours per day. This should be spent away from their working area.
Rest breaks between shifts
Adult workers are entitled to a daily rest period of 11 consecutive hours between each working day and a weekly rest period of 24 consecutive hours in each seven day period i.e. at least one day off per week.
Young workers are entitled to a daily rest period of 12 consecutive hours between each working day and a weekly rest period of 48 consecutive hours in each seven day period i.e. at least two days off per week.
Compensatory rest breaks
In some jobs, the nature of the work means that it is not always possible to keep strictly to working time limits or offer rest breaks at set times. In these cases, workers should be offered compensatory rest breaks as soon as possible afterwards.
If the nature of the PA’s work means that they will have to regularly forgo rest breaks e.g. looking after a child, then you will need to ensure that they agree to this and that they sign a workforce agreement (see below).
Weekly working time
Adult workers must not work more than an average of 48 hours in each seven day period (averaged over a period of 17 weeks). You are required to take reasonable steps to ensure that your PAs do not exceed the 48-hour weekly limit. As part of this you should find out whether the PA has a second job and if they have, adjust their working arrangements accordingly.
If your PA wants to work more than 48 hours per week, they can do so if they sign an opt-out agreement (see employer template 1.6(a) 48 hour opt out agreement). If they later want to reduce their hours to 48 hours, then you are legally obliged to allow them to, if your PA gives three months’ written notice.
It is against the law to treat your PAs less favourably because they refuse to work more than 48 hours per week. If you dismiss someone on this basis, then the dismissal will automatically be unfair and if the dismissed PA takes you to an employment tribunal they will automatically win.
Young workers cannot work more than eight hours per day and no more than 40 hours per week in total.
Annual leave (‘holiday’)
Your PAs are entitled to 5.6 weeks paid leave (‘holiday’) per year. This includes bank holidays. Most employers allow full-time workers 20 days (four weeks) annual leave and eight days (1.6 weeks) leave for bank holidays (the extra leave for bank holidays does not have to actually be taken on bank holidays). Part time workers have the same rights on a pro-rata basis.
Your PAs are legally required to take at least the minimum period annual leave from work in order to protect their health and safety. For this reason you are not allowed to pay your PA for annual leave then allow them to work during the annual leave period to earn more wages. Legally your PA must take this time off to rest.
If your PA is on sick leave or maternity leave, they are still entitled to paid holiday.
How much should I pay my PA during annual leave?
The payment for annual leave is calculated on the basis of your PA’s normal daily or weekly pay, as stated in their employment contract. Overtime will not be included unless you are contractually obliged to provide your PA with overtime or if their overtime becomes regular. You can use employer template 3.2(a) Holiday calculator (fixed hours) to help you calculate how much annual leave your PA is entitled to.
If the number of hours that your PA works are variable, you can use employer template 3.2(b) Holiday calculator (casual or zero hours) to help you with this calculation.
For more information on holiday pay and entitlement please see factsheet 3.2: Holiday pay and entitlement.
Night working
‘Night-time’ is generally the period between 11.00pm and 6.00am. However you can agree with your PA to change what you define as the night-time period. If you do it must be at least seven hours long and include the period between midnight and 5.00am.
A ‘night worker’ is someone who regularly works for at least three hours during this period.
If you employ night workers their average hours of work are limited to eight hours in each 24-hour period. A night worker is not allowed to opt out of the 48-hour average weekly maximum.
Young workers cannot work between the hours of 10.00pm to 6.00am or 11.00pm to 7.00am and therefore they cannot work night shifts.
Health assessments for night workers
Night workers have the right to a free health assessment before starting night work and at regular intervals whilst they are working night shifts. Night workers should be transferred to suitable day work if the health assessment shows they are suffering health problems related to night work.
Night workers can suffer from disruption of the internal body clock, sleeping difficulties and fatigue. This in turn can affect performance, increase the likelihood of errors and accidents at work and may affect their health in the long-term.
If you wish you can use employer template 1.6(b) Night worker’s health assessment for this task.
Workforce agreements
What is a workforce agreement?
A ‘workforce agreement’ is an agreement between you and your PAs. It can apply to all your PAs or just to PAs who belong to a particular group e.g. your PAs who work night shifts. It is recommended that you take advice from your Employers Liability Insurance before implementing a workforce agreement. This is to ensure that your proposed changes comply with working time regulations.
A workforce agreement can be written to change:
- length of night work limits
- rights to rest periods (i.e. the 11 hours daily rest, 24 hours weekly rest)
- right to rest breaks (i.e. the 20 mins per six hours)
- how many weeks you use to average your 48-hour weekly maximum
Workforce agreements must:
- be in writing
- be sent to all PAs who are affected
- be signed by both the employer and the PAs before it comes into effect
You need to make sure your PAs understand what you are asking them to sign. You may need to hold a meeting with them to explain this. Alternatively, you could give them written information to explain the agreement.
Once your current PAs have signed it, the rules of the workforce agreement will apply to new recruits, until the end date of the agreement. The end date of the agreement must be no more than five years from the date it was signed, unless the employee(s) ends it before this date by giving three months written notice.