Road Transport (Working Time) Guidance

3. Weekly working time limits (and how to calculate them)

3.1 Main Points

• Workers may not exceed an average 48 hours working time a week over the reference period, nor may they exceed 60 hours working time in a single week (a week always starts at 00.00 on Monday morning).
• Workers covered by the Regulations cannot opt-out from the average 48-hour weekly limit.
• The average weekly working time should be calculated over 17 weeks (some methods allow 18 weeks). This can be extended to a maximum of 6 months (26 weeks) under a relevant agreement (see section 7.1 - "relevant agreements").
• Enforcement will be on the basis of a fixed reference period, but companies are free to manage working time on the basis of rolling reference periods. The important thing is that where fixed periods are used, the start date is established in advance so that compliance can be monitored.
• The average 48 hour weekly limit can be monitored using a rolling reference period over 17 weeks like the existing period under the 1998 Working Time Regulations, as amended - see annex E for details. A collective or workforce agreement is only required under this method if the reference period exceeds 17 weeks.
• Employers and mobile workers may agree on the reference period to be used (see Section 7.1 - "relevant agreements"). In the absence of such an agreement, employers can either use option 1 (fixing dates by the calendar) or option 2 (the rolling method) - see Section 3.6 for details of the options.
• Statutory annual leave entitlement provided by regulation 13 of the 1998 Regulations, sick leave, maternity, paternity, adoption or parental leave cannot be used to bring down the average weekly working time.  Employers must enter 48 hours for each week and 8 hours for each day of such leave. If using the rolling reference period, such leave can be offset using the method used under the 1998 Regulations (see Annex E for details).

Employers check:

Decide on your preferred option (fixed or rolling) to monitor compliance with the average 48 hour working week;

If a longer reference period or different start/finish dates are needed, consider a collective or workforce agreement with the workers;

If an agreement is reached, make sure the reference period does not exceed 26weeks. 

3.2 Limits

If you are an employer, you must ensure your workers do not work more than an average 48-hour week or more than 60 hours in any single week.

Unlike under other working time legislation, mobile workers cannot opt-out from these weekly limits.

3.3 What is the reference period and when does it start?

Normally, the number of hours worked each week should be averaged out over a continuous 17 week period. However, the "default calendar option" referred to below, includes some 18 week periods. This is to allow 3 reference periods to be accommodated into one calendar year. In addition, this period can be extended up to 26 weeks if there is a relevant agreement in place (see section 7.1 - "relevant agreements"). This continuous 17 or 26 week period is used to calculate the average weekly working time and is known as the 'reference period'.

The working week must start at 00.00 on Monday morning and finish at 23.59 on the following Sunday. So the starting point for calculating the average 48 hour and 60 hour weekly limits should always be 00.00 on Monday morning.

3.4 Calculating average weekly working time

The average weekly working time is calculated by dividing the number of hours worked by the number of weeks in the reference period. It is possible to work up to 816 hours in a 17 week reference period, 864 hours in an 18 week period and up to 1248 hours in a 26 week period.

Example 1:

A worker has a standard working week of 40 hours and does overtime of 12 hours a week for the first 10 weeks of a 17-week reference period. No leave is taken during the reference period.

The total number of hours worked is:

17 weeks of 40 hours and 10 weeks of 12 hours of overtime

(17 x 40) + (10 x 12) = 800

Therefore the average (total hours divided by number of weeks) is: 800 / 17 = 47.1

The 48 hour average and the 60 hour cap have been complied with.

3.5 Calculating the average when leave is taken

You cannot use the four weeks statutory annual leave provided by regulation 13 of the 1998 Regulations - sick leave, maternity, paternity, adoption or parental leave in order to reduce the average working time performed during the reference period.

Annual leave

When using a fixed reference period to calculate average weekly working time "notional" working time figures must be recorded when any of the four weeks statutory leave provided by regulation 13 of the 1998 Regulations is taken.  This is to ensure that such leave is 'neutral' for the purpose of calculating weekly working time.  These notional figures are 48 hours per week and 8 hours per day.

However, "notional" figures do not have to be recorded for the statutory annual leave provided by regulation 13A of the 1998 Regulations or for any additional contractual leave entitlements provided in excess of the statutory minimum (see section 2.4 for further information).

So the amount of working time that must be recorded when a mobile worker takes a day's leave depends on the type of leave being taken: if a mobile worker were to take a day's leave that was part of:

• the 4 weeks statutory annual leave provided by regulation 13 of the 1998 Regulations, then 8 hours working time would have to be recorded;
• the additional 0.8 weeks statutory annual leave provided by regulation 13 A of the 1998 Regulations, then zero hours working time would have to be recorded;
• additional contractual leave in excess of the 4.8 weeks statutory annual leave entitlement, then zero hours working time would need to be recorded.

The Regulations do not state how a ½ day's statutory annual leave provided by regulation 13 of the 1998 Regulations should be recorded.  The Department would consider it reasonable that in these situations a "notional" figure of 4 hours for the ½ days leave be recorded plus the actual amount of working time for that day.

Sick leave, maternity, paternity, adoption or parental leave

The "notional" figures also have to be included for any period of sick leave, maternity, paternity, adoption or parental leave taken by the mobile worker.

So if someone takes 1 week off on leave and takes 2 days additional days leave, all of which are part of the 4 weeks annual leave provide by regulation 13 of the 1998 Regulations, over a 17 week reference period, then you add a notional 48 hours + 16 hours to bring the total working time up to the equivalent of 17 weeks. The total working time is then divided by 17 to find the average.

Example 2:

During a 26 week reference period a driver works 35 hours for 13 weeks and 60 hours for 10 weeks + 1 day (for 9 hours). The remaining period, (2 weeks 5 days) is taken as part of the 4 weeks annual leave provided by regulation 13 of the 1998 Regulations leave during this period.

The total hours worked in the reference period is:

(35 x 13) + (60 x 10) + (1x9) = 1064 hours worked in 23 weeks + 1 day

Add 2 x 48 hours for the 2 weeks leave and add 8 hours per day to bring the time worked up to 26 weeks.

2 weeks x 48 = 96

5 (days) x 8 = 40

1064 + 96 + 40 = 1200

Therefore the average (total hours divided by number of weeks) is: 1200 / 26 = 46 hours

The 48 hour average and the 60 hour cap have been complied with.

Note: You should only input 48 hours for one week of leave that starts / finishes 00.00 on Monday morning. Any other period of 7 consecutive days (e.g. Wednesday to Tuesday) should be worked out on a daily basis).

3.6 Who decides what reference period should be used?

The employer and worker may agree, in advance, what reference period should be used. But if no agreement is reached, then the Regulations will require that the employer uses either the first or second option (see below).

The Options:

Whichever method is in place, the employer and worker must know in advance how working time is being monitored and when the reference period starts and when it ends.

There are several methods you can use to calculate and monitor compliance with the weekly average. The first two options (basic fixed calendar and the rolling reference period) can be used without the need for a relevant agreement. However, employers will still need to tell their workers about which method they are going to use; in particular they must give written notice if they choose Option 2, the rolling reference period. The third option provides employers with extra flexibility and does require a collective or workforce agreement (section 7.1 - "relevant agreements").

Option 1: Basic fixed calendar

Companies looking for an off-the-shelf approach to complying with the Regulations may like to use this option. It will, in any case, be one of the two approaches open to an employer if no workforce or collective agreement is in place.

Default reference periods will begin at 00.00 on the nearest Monday morning on or after 1 April, 1 August and 1 December each year.

At least one of the reference periods each year will contain 18 weeks. When this occurs, the average 48 hour week should be divided by 18 weeks, rather than 17 weeks.

Option 2: Rolling reference period

This is the normal method used under regulation 4(6) of the 1998 Regulations, for monitoring working time.

If an employer decides to use a 17 week rolling reference period they must inform their mobile workers of this in writing.  Employers do not need to inform their mobile workers of this on a continuous basis, mobile workers only need to be notified once (unless the employer keeps switching between methods).  If an employer is moving from a fixed reference period to a rolling reference period one approach would be to notify existing workers of this fact in a letter.  Employers may wish to consult workers beforehand or to take advice as to whether any change in practice constitutes a variation in the terms of employment, which a worker could object to.  Thereafter, for new staff this requirement could be set out in the contract of employment or a workforce or collective agreement.

Under a rolling average, the consecutive reference periods should not result in an average working week in excess of 48 hours. For a 17 week reference period for example, this would mean that in addition to the period from say 3 April - 30 July  not exceeding the 48 hour average, the period from 10 April - 6 August should not exceed the average - and so on. Nor indeed should any other consecutive 17 - 26 week period in the weekly record exceed the average 48 hour working week (see Annex E for details).

The method of compensating for leave is different under the 1998 Regulations. Actual working time from outside the reference period is used to offset the statutory leave taken inside the reference period. So if 1 week + 2 days leave is taken within the 17 week reference period, the actual working time from the 18th week + 2 days from week 19 is used to offset this leave. For mobile workers within scope of these Regulations, employers using Option 2 can choose to offset statutory leave with either method. That is, by using actual working time, or by using the notional figures of 48 hours/8 hours described above.

Option 3: Reference period settled by agreement

This offers additional flexibility for employers and workers via a relevant agreement to have:

Different start and finish dates for the reference period, and

Longer reference periods (up to 26 weeks).

For example, three reference periods starting on the nearest Monday on or after 1 May; 1 September and 1 January, could be chosen, or two 26 week reference periods may be agreed. However, whatever start date is agreed, the reference period must begin at the start of the week; from 00.00 on Monday morning (see option 3 - Annex C).

A relevant agreement does not have to apply to all the workers in a company. For example:

Different agreements can be agreed between different groups of workers in the same company (so the start dates and the length of the reference period can vary within the same organisation).

An agreement may allow different reference periods to apply to certain individuals. For example, it might be better if drivers who work for two employers to have their own reference period.

3.7 Which method should I use?

That depends on your circumstances:

Option 1: Fixing the reference period could simplify the monitoring and enforcement of compliance. It also gives employers more flexibility; e.g. the worker could work above average hours for the second half of the first period and the first half of the second period, without breaching the 48 hour limit.

Option 2: Companies, who are happy using a rolling reference period for existing non-mobile workers, may want to apply the same method for their mobile workers. However, this gives least flexibility for employers.

Option 3: Workers, who work for two or more employers, may prefer a rolling period or have their own unique fixed reference period.

If an occasional mobile worker exceeds the limit in the definition (see Section 1.3 - "occasional mobile worker"), the simplest method would be to use option 3. Over the reference period that is agreed with the employer, the individual should not exceed an average working time of 48 hours a week, nor exceed the 60 hour limit on working time for any single week during this period.

For those who already use the rolling reference period under the main working time rules, employers may find it easier to continue using this for such workers - rather than change the system they currently work with.

3.8 Other points to note

If a mobile worker works for two or more employers, then the weekly working time - (i.e. work, excluding breaks, rest and periods of availability) is the working time performed for all employers.

Employers must ask the mobile worker concerned in writing for an account of time worked for another employer and a written record needs to be kept by the employer of any time spent working elsewhere. The mobile worker must declare this information in writing. This requirement (for a mobile worker to disclose work for another employer) could be set out in a contract of employment, or under a collective or workforce agreement. Moreover, if a mobile worker fails to disclose time worked for another road transport undertaking, following a request, that worker commits an offence.

If a worker has been working for an employer for less than the full reference period (e.g. 12 weeks), then the average is worked out over the total time since the start of his or her employment. If a mobile worker moves from one employer to another on a series of fixed short term contracts that are less than 17 weeks - the 48 hour weekly average must be complied with over the length of each contract.

Frequently asked questions:

Q: Can an employer use 2 methods (e.g. the default option for some workers (option 1) and fixed by agreement for another group of workers (option 3)?

A: Yes, as long as mobile workers know which method is being used to monitor their own working time.

Q: Can an employer switch methods?

A: Yes, providing his workers agree. If the switch is from one fixed reference period, to another fixed period, care needs to be taken to ensure that working time does not exceed an average 48 hours per week.

Q: Can I use annual leave and sick leave to reduce my average working time?

A: When calculating average working time during a fixed reference period under the Regulations, mobile workers are required to include notional "working time" figures for any statutory annual leave under regulation 13 of the 1998 Regulations sick leave, maternity, paternity, adoption or parental leave that they take. These notional figures are 8 hours per day and 48 hours per week. This means that such leave cannot be used to offset hours actually worked.

Q: Why are we required to add in notional figures for any statutory annual leave that is taken under regulation 13 of the 1998 Regulations?

A: This arrangement reflects a requirement under the main European Working Time Directive (2003/88/EC) that annual leave should remain neutral for the purposes of calculating any weekly average. This element of the main Directive also applies to mobile workers. It is up to Member States to decide how best to implement this provision in their respective territories. A 48-hour notional figure for a week reflects the maximum average weekly working time allowed. By using this figure, the effect of a week's leave is therefore neutral for the purposes of calculating average working time across a reference period.

Q: If during a 26 week reference period I work maximum 60 hour weeks for 12 weeks, then take the rest of the reference period off as sick, my average working time will exceed 48 hours. What should I or my employer do in this situation?

A: In these circumstances, the employer should keep a full explanation of the reasons for the excess average, with the mobile worker's records.

Q: How does time taken off for jury leave, union duties, disciplinary suspension etc affect the "working time" calculation?

A: The requirement to add-in notional "working time" figures only applies to statutory annual leave provided by regulation 13 of the 1998 Regulations, sick leave, maternity, paternity, adoption or parental leave (as mentioned in Section 3.6). The prescribed notional figures do not have to be included for time off for any other reasons (such as jury leave, union duties, or disciplinary suspension).

Q. Can any annual leave above the 4 week statutory annual leave entitlement provided by regulation 13 of the 1998 Regulations be used to reduce the hours worked in a week?

A: The requirement to add-in notional figures for annual leave only applies to the four weeks statutory annual leave entitlement provided by regulation 13 of the 1998 Regulations. Any leave periods in excess of these four weeks (for instance the additional leave provided by regulation 13 A of the 1998 Regulations or additional contractual entitlements) are not treated in this way.

Q. Are Bank Holidays included in the statutory paid leave entitlement?

A: Whether bank and public holidays are counted as part of the statutory annual leave entitlement will depend on the contract of employment between employer and mobile worker.

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