Can I require an employee to sign the 48-hour opt-out as a condition of employment?

Making the opt-out a condition of employment is risky. While not explicitly prohibited, dismissing or refusing to hire someone for declining to opt out would be unlawful detriment under the WTR. In practice, tribunals are likely to find that a 'mandatory' opt-out is not truly voluntary. Present it as a genuine choice.

Do lunch breaks count as working time?

Only if the worker remains at their employer's disposal. A genuine break where the worker is free to leave the workplace and do as they wish is not working time. A 'break' where the worker must remain at their desk to answer phones or deal with emergencies is working time. The key test is whether the worker is genuinely free.

How do the Working Time Regulations apply to salaried workers who are not paid overtime?

The WTR apply to all workers regardless of how they are paid. A salaried worker who regularly works more than 48 hours on average is in breach of the regulations unless they have signed an opt-out. The fact that they are not paid overtime does not exempt them. Monitor hours for salaried workers as well as hourly workers.

What happens if a worker has two jobs that together exceed 48 hours per week?

Each employer is responsible for ensuring that the work done for them does not cause a breach. In practice, where you know an employee has a second job, you should take reasonable steps to ensure total hours do not exceed the limit. If the combined hours exceed 48, the worker can sign an opt-out — but this must be genuinely voluntary.

Working Time Regulations: UK Employer Guide to Hours, Breaks, and Opt-Outs

The Working Time Regulations 1998 (WTR) set the legal framework for working hours, rest breaks, and annual leave in the UK. Originally derived from the EU Working Time Directive, these regulations remain fully in force as retained UK law following Brexit. Every UK employer must comply with the WTR, and breaches can result in enforcement action by the Health and Safety Executive, employment tribunal claims, and criminal penalties.

This guide covers the key provisions of the WTR, the rights and obligations they create, and how to manage compliance in practice.

Maximum weekly working hours

The headline rule is straightforward: workers must not work more than an average of 48 hours per week, calculated over a 17-week reference period. This is not a hard cap of 48 hours in any single week — it is an average. A worker can work 60 hours in one week provided they work fewer hours in other weeks to bring the average down.

What counts as working time

Working time is defined as any period during which the worker is working, at their employer's disposal, and carrying out their duties. This includes time spent travelling as part of the job (but not the ordinary commute), training required by the employer, working lunches where the worker remains at their employer's disposal, and on-call time where the worker must remain at the workplace.

Time that is not working time includes ordinary commuting, lunch breaks where the worker is genuinely free to leave and do as they wish, and on-call time where the worker is free to be at home and go about their normal activities (though the position on this is evolving through case law).

Record keeping obligation

Employers must keep records sufficient to show that the 48-hour average is being complied with. While the regulations do not prescribe a specific format, you need enough data to demonstrate compliance if challenged. This is particularly important for workers with variable hours, overtime, or multiple roles.

Calculating the average

To calculate the average weekly working time, add up all working hours over the 17-week reference period and divide by 17. If the worker was absent during any part of the reference period (such as sick leave or annual leave), those weeks are excluded and the reference period is extended by an equivalent number of weeks.

The opt-out agreement

The UK retained a provision unique among former EU member states: the individual opt-out from the 48-hour limit. A worker can agree in writing to work more than an average of 48 hours per week.

Requirements for a valid opt-out

The opt-out must be voluntary — you must not dismiss or subject a worker to any detriment for refusing to sign, in writing (either as a standalone agreement or as a term in the employment contract), and either indefinite or for a stated period. The worker can cancel the opt-out by giving written notice of at least 7 days (or up to 3 months if specified in the agreement).

Opt-out does not remove all protections

Even where a worker has signed an opt-out, they retain all other WTR rights: daily rest, weekly rest, rest breaks, night work limits, and annual leave. The opt-out only removes the 48-hour average weekly limit. You still have a duty of care for the worker's health and safety.

Practical considerations

While the opt-out is legally available, employers should use it cautiously. Long working hours are associated with increased accident risk, reduced productivity, and health problems. If a worker suffers a health and safety incident after regularly working excessive hours, the opt-out will not protect you from a negligence claim. You still have a common law and statutory duty to ensure your workers' health and safety.

Keep records of who has opted out and monitor their actual hours. If you identify workers regularly exceeding 55-60 hours per week, consider whether this is sustainable and whether it indicates a staffing or workload problem.

Rest breaks and rest periods

The WTR establish three levels of rest entitlement.

Daily rest

Workers are entitled to 11 consecutive hours of rest in every 24-hour period. For example, a worker who finishes at 11pm should not start again before 10am the following day. This is particularly relevant for shift workers and those with variable schedules.

Weekly rest

Workers are entitled to an uninterrupted 24-hour rest period in each 7-day period, or an uninterrupted 48-hour rest period in each 14-day period. Most workers take this as a weekend, but there is no requirement for it to fall on specific days.

Rest breaks during the working day

Workers who work more than 6 hours at a stretch are entitled to a rest break of at least 20 minutes. The break must be uninterrupted, the worker must be allowed to spend it away from their workstation, and it cannot be taken at the beginning or end of the working period.

Best practice exceeds the minimum

The statutory 20-minute rest break is a minimum. Many employers provide a 30-minute or 1-hour lunch break, which exceeds the legal requirement. If you provide a longer break, make clear in the contract whether it is paid or unpaid, as the statutory 20-minute break does not need to be paid.

Night work

The WTR impose additional protections for night workers. A night worker is someone who regularly works at least 3 hours during the night period (11pm to 6am by default, though this can be varied by agreement).

Maximum night work hours

Night workers must not work more than an average of 8 hours in any 24-hour period, calculated over a 17-week reference period. Unlike the 48-hour weekly limit, there is no opt-out from the night work limit for workers whose work involves special hazards or heavy physical or mental strain. For such workers, the 8-hour limit is absolute — not an average.

Health assessments

Before assigning a worker to night work, and at regular intervals thereafter, you must offer a free health assessment. If the assessment reveals health problems related to night work, you must transfer the worker to day work where possible.

Record keeping

Keep adequate records to show that the night work limits are being complied with. This includes records of who is classified as a night worker, hours worked during the night period, and health assessments offered and completed.

Annual leave

The WTR give all workers the right to 5.6 weeks of paid annual leave per year (28 days for a full-time worker, pro-rated for part-time workers). This includes bank holidays — there is no automatic right to bank holidays off unless the contract provides for it.

For detailed guidance on managing annual leave, including accrual during sickness and maternity leave, see our guide to managing annual leave requests and statutory holiday entitlement.

Exemptions and special cases

Certain categories of worker are wholly or partially exempt from the WTR.

Wholly exempt

Workers whose working time is not measured or predetermined — genuinely autonomous decision-makers who control their own hours. This is narrowly interpreted and applies mainly to senior executives and professionals with genuine autonomy. The fact that someone is called a "manager" or is salaried does not automatically make them exempt.

Partially exempt

Some sectors have modified rules, including road transport (covered by separate drivers' hours regulations), sea fishing and seafarers, aviation (covered by the Civil Aviation (Working Time) Regulations), the armed forces and emergency services in certain circumstances, and domestic servants in private households.

Young workers (under 18)

Young workers have enhanced protections: a maximum of 8 hours per day and 40 hours per week (no averaging, no opt-out), 12 hours of daily rest (not 11), 48 hours of weekly rest (not 24), and a 30-minute break when working more than 4.5 hours (not 6).

Enforcement and penalties

Workers can bring employment tribunal claims for breach of the rest break and annual leave provisions. Claims must normally be brought within 3 months of the date of the breach.

The Health and Safety Executive and local authorities can take enforcement action for breach of the maximum working hours and night work provisions, including improvement notices, prohibition notices, and criminal prosecution. Offences are punishable by fines and, in serious cases, imprisonment.

Criminal liability

Breach of the working time limits is a criminal offence. While prosecutions are relatively rare, they do occur — particularly where excessive hours have contributed to a workplace accident or where an employer has systematically ignored the regulations.

Practical compliance steps

To ensure compliance with the WTR, every employer should review employment contracts to ensure they reflect WTR entitlements (rest breaks, annual leave, working hours), implement a system for recording working hours — even a simple spreadsheet is better than nothing, obtain valid written opt-outs where workers will exceed 48 hours on average (and keep them on file), monitor actual hours worked and intervene if workers are regularly exceeding safe levels, train managers to understand the rest break and daily rest requirements, schedule shifts to allow for the mandatory 11-hour daily rest period, and offer health assessments to night workers before they start and at regular intervals.

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Frequently asked questions

Next steps

Free Working Time Compliance Checklist

Download our WTR compliance checklist, opt-out agreement template, and working hours record sheet.

working-time-compliance-pack-2026.docx

Key takeaways

The Working Time Regulations set mandatory limits on weekly hours (48-hour average), require minimum rest breaks and rest periods, impose additional protections for night workers, and guarantee 5.6 weeks of paid annual leave. The individual opt-out allows workers to voluntarily exceed the 48-hour limit, but all other protections remain in force. Employers must keep adequate records, monitor actual hours, and ensure rest entitlements are respected. Compliance is not just a legal obligation — it protects worker health and reduces the accident, fatigue, and burnout risks that come with excessive working hours.

Use our Payroll Tax Calculator to check how overtime payments affect tax and NI deductions, and ensure your payroll reflects the correct hours for each pay period.