Clause Clinic
Opt-outs from the Working Time Regulation’s average weekly working hours often look something like this:
“You shall be required to work such additional hours as are necessary to fulfil your duties without further remuneration. You agree that this may involve your working over the 48-hour average limit set out in the Working Time Regulations 1998. If you wish to revoke your agreement to opt-out of the average weekly working hours, you may do so by providing the Company with three months’ prior written notice.”
The Working Time Regulations set a limit on the amount of working time that can be undertaken by a worker during each week. The general rule is that a worker’s working time (including overtime) in any reference period (namely any period of 17 weeks) shall not exceed 48 hours for each 7 days. An employer is under a positive duty to take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that this limit is not exceeded.
Many employers ask workers to opt out of the provisions pertaining to the 48 hour working week, and not always because they expect their staff to work excessively long hours. Although it is possible, subject to the limitations set out below, to opt out of these provisions, readers should note that the legality of the opt-out is currently being negotiated in Europe. It is likely that revisions will be made to the right to opt-out, although the UK will be given time to implement any changes to domestic legislation.
At the moment opt outs are binding if they:
- are agreed in writing;
- relate to either a specified period or apply indefinitely;
- are capable of being terminated by the worker giving notice to the employer in writing: such notice must not be less than seven days and no longer than three months.
Workers who refuse to sign an opt-out agreement are protected against detrimental treatment.
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