Working time and breaks

Overview

The Working Time Regulations 1998 apply across the UK. They affect the number of hours an employee can work per week as well as the rest breaks the employee is entitled to - including breaks between shifts, annual leave and days off. The key aim of the regulations is to ensure standards of health and safety in the workplace.

The regulations apply to most ‘workers’. 'Workers' is a wider category than ‘employees’ (employees work under a contract of employment) so the regulations will apply to most agency workers. 

There are certain exceptions to the application of the regulations, for example active membership of the armed forces. This area is complex and if you are in dispute with your employer over whether the regulations apply to you, please contact us for advice.

If you have concerns

If you have concerns about your working time, speak to your employer in the first instance. You can raise your concerns in writing, following our raising concerns guidance. If your concerns are not addressed, please contact us on 0345 772 6100.

Gov.uk define working time as including:

• job-related training
• time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers
• time spent travelling between home and work at the beginning or end of your working day (if you do not have a fixed work base or you are asked to work from somewhere other than your normal base)
  working lunches, e.g. business lunches
• time spent actually working abroad in some cases
• paid and some unpaid overtime
• time spent on call at the workplace, and
• any other time that is treated as ‘working time’ under a contract.

The following are generally not regarded as working time:

• breaks when no work is done, e.g. lunch breaks
• normal travel to and from fixed or habitual workplaces
• time on call away from the workplace
• evening and day-release classes not related to work
• travelling outside of normal working hours
• unpaid overtime a worker has volunteered for, e.g. staying late to finish something off
• paid or unpaid holiday.

Check your contract and your employer's policies if you are unsure about what is treated as working time in your workplace. The ACAS guidance on working hours may also be useful.

You cannot be forced to work over 48 hours a week over a standard reference period of 17 weeks. Hours are normally averaged over this reference period by taking actual hours worked divided by the number of weeks. If the reference period includes any 'excluded' days, then the hours worked in the equivalent number of days following the reference period must be included. 'Excluded' days include paid annual leave, sick leave and maternity leave. 

You can opt out of the 48 hour weekly limit if you agree this with your employer in writing. The decision to opt-out is an individual and voluntary one, and you should not be under any pressure to take that option. Any agreement made could relate to a specified period or may apply indefinitely – ensure this is clear in the agreement itself. 

If you make the agreement and then wish to end it, you must give written notice to your employer. Unless agreed otherwise, you will need to give a minimum of 7 days’ notice to your employer in writing. The maximum notice should not exceed three months.

Rest breaks during a shift

You are entitled to a minimum break of 20 minutes when your daily working time is more than six hours. This should:

• be uninterrupted
• be away from your workstation
• be during working time
• not be taken at the start or end of the working day
• not overlap with your daily rest.

The regulations are silent on whether a rest break is paid time but the RCN recommends that the break should be paid.

Check your employment contract and/or policies to find out if you can leave your workplace during a break.

What if I'm the only registered nurse?

If you are the only registered nurse - and therefore in charge - you must stay on the premises during your shift. You should be paid for this. If you work in a care home, the registering authority will revoke the home's registration if there is no qualified person on the premises.

As a nurse, you are bound by your NMC Code and owe a duty of care to your patients to ensure their safety and manage risk. You are professionally accountable for your acts and omissions and you must be able to justify your decisions.

If current working patterns mean you cannot take your breaks (for example, where you are the only nurse), these working arrangements need to be reviewed. If you are in this position, call us to discuss arrangements for local support.

Daily rest breaks

You are entitled to a rest period of at least 11 consecutive hours in each 24 hour working period. This time may be taken over two calendar days.

Where this is not possible, you must be given “equivalent compensatory periods of rest” or “appropriate protection”.

12 hour shifts are legal. However, the regulations generally require that there should be a break of 11 consecutive hours between each 12 hour shift.

We believe that no shift should be longer than 12 hours, and that a 12 hour shift may not be appropriate for all nurses. 12 hour shifts should be considered in the context of both patient safety and the physical and psychological demands of shift work. 

Weekly rest breaks

You are entitled to an uninterrupted rest period of at least 24 hours in each seven day reference period. This is in addition to an 11 hours daily rest period.

Your employer can average the weekly reference period over 14 days. In a 14 day period, your employer should provide either two uninterrupted rest periods of not less than 24 hours or one uninterrupted rest period of not less than 48 hours.

Where this is not possible, equivalent compensatory rest or appropriate protection must be given to you.

On average, all workers should receive 90 hours rest per week. This does not include breaks during working time which are additional.

The regulations state that compensatory rest must be given when the relevant rest requirements cannot be met. Compensatory rest will most likely be necessary when you are either:

• working a shift pattern and the shift extends beyond thirteen hours due to an unforeseen situation or emergency
• working on-call from home and are called upon to work during the period of duty
• whenever staff are rostered to be resident on-call for more than 13 hours continuously. For example, if the worker only had 10 rather than 11 hours rest between shifts, one hour compensatory rest must be given.

In each situation the rest provided should make up for the rest you missed. This should be taken as soon as possible. 

The arrangements for taking compensatory rest will need to be determined locally in the light of individual circumstances.

The regulations recognise that services such as the NHS and social care will have instances where a continuous emergency service must be maintained. Where it is not possible for objective reasons to grant you a period of compensatory rest, an employer should give you 'appropriate protection' to safeguard your health and safety.

If you believe your work routine does not provide you with adequate rest, you should raise this with your employer.

If you believe that you are being denied any of the entitlements due to you, or need specific advice about your circumstances, you should contact us for further advice on 0345 772 6100.

If there is no registered nurse to take charge of the next shift, registrants remain bound by their NMC Code to act in the best interests of their patients or clients. However, if you have already worked a full shift, you may feel unsafe to continue working, especially if this means covering a night shift.

If you are working in a care home, please contact the registered manager who has 24 hour responsibility for the home. You should explain the situation and request that cover be arranged, even if this means that the registered manager (who is a registered nurse) has to cover the shift themselves.

If you are working within the NHS, or for a large private organisation, there should be a local policy and a documented escalation process available to you.

If the above issue is a recurring problem, please contact us. We can support you to raise your concerns. 

The hours you are on-call may count towards working hours. This depends on whether you are resident on-call or non-resident on-call.

Resident on-call

If you are required as part of your duties to be resident in hospital (or other place of work) out of hours and are provided with on-call facilities, you are considered to be 'working' during your period of duty. The whole of the resident on-call period counts as working time whether or not you are working - even where you are sleeping or resting.

Read more about the national minimum wage and sleep-ins.

Non-resident on-call

If you are off-site, non-resident on-call, or are not required to be continuously present at the hospital or other place of work, you are not considered to be working unless called to do so. Where you are called out to respond to an emergency and are unable to take your daily rest entitlement, you are subject to the requirements of compensatory rest.

It is possible to work a 12 hour night shift as long as the average length of a night shift does not exceed eight hours in a 24 hour period, when measured over a standard reference period of 17 weeks.

As a night worker, you must have the opportunity of free health assessment before taking up night work and at regular intervals.

Whenever possible a night worker should be transferred to suitable day work if a medical practitioner confirms to the employer that they are suffering health problems connected with doing night work.

You can find additional information on night work at Health and Safety Executive (HSE) and nidirect.

An agency should monitor working hours to ensure that healthcare professionals do not work beyond the average 48 hours per week, unless the healthcare professional has individually agreed to not apply the limit. This must be by means of a written agreement which can be terminated by the healthcare professional giving a minimum of seven days’ notice (in the absence of an agreed period within the agreement itself).

An agency is responsible for recording the total number of hours worked and could be asked by the Health and Safety Executive (HSE) or Health and Safety Executive Northern Ireland (HSENI) to produce this information.

In all circumstances you should check your contract with the agency to see what it says about maximum weekly working time. 

Read more about agency work.

As the aim of the regulations is to protect health and safety, the amount of combined hours worked per week should not be excessive. 

Each employer must take reasonable steps to ensure that if the worker is also working for another employer, the total combined working time does not exceed 48 hours per week. In this instance you should have an agreement with both employers if you intend to work more than 48 hours on average.

To monitor hours, we advise that it is reasonable for your employers to ask for details of any other jobs held and hours worked, but no further details such as salary.

Check your contract - it may state that you must have the prior consent of your first employer before taking up a job elsewhere.

Long hours, fatigue and lack of rest breaks or time to recuperate between shifts are associated with an increased risk of errors. Healthcare professionals therefore need to be vigilant about the impact of fatigue on their professional practice. Nurses should, for example, consider their obligations under the NMC code regarding the management of risk. You should also consider the impact of multiple jobs and your working hours on your ability to practice safely.

Issues such as an inability to take scheduled rest breaks, insufficient rest periods between shifts and pressure to carry out excessive overtime - or to stay on after the shift has ended - are legitimate issues to act on and raise professional concerns about.

Read our raising concerns guidance and if your concerns are not being addressed by your manager, contact us for help and support.