Working time directive opt out agreement template

A working time directive opt out form is used when a business has employees who want to work longer than the government’s maximum weekly working hours. This agreement to waiver the working time regulations must be in writing and specify how long the employee wants to opt out for.

Download our working time directive opt out agreement and tailor it for your business. Read on to find out more about the working time regulations in the UK and make sure you’re complying with the law.

This template has been produced by Farillio so we can’t take responsibility for its contents. We'd recommend you take professional advice before making any important decisions based on its contents.

What is the working time directive?

The working time directive (also known as working time regulations) relates to the maximum weekly working hours an employee can work on average during a 17-week period. This includes regulations for breaks and annual leave, and is set out in the Working Time Regulations Act 1998.

These regulations set out statutory rights for workers around how long they can work, including:

• a maximum of 48 hours work a week
• 5.6 weeks of paid annual leave
• 11 consecutive rest hours in every 24 hour period
• 20 minute rest breaks for working days longer than six hours
• at least one day off per week (or two days off every fortnight)

Working time refers to time spent performing a role. This can include training and travelling, if it’s visiting clients or related to performing the job – but not travelling to and from the office.

The working time regulations and the statutory 48-hour work limit exist to protect the health and safety of workers. That’s why it’s important that, if an employee agrees to work more hours, you have a copy of this agreement in writing to make sure you’re compliant with the law.

Working time directive opt out

If you’ve agreed any variation to these statutory rights with your employees then this will be detailed in a workforce agreement, for example when it comes to night time working and rest periods.

However, it won’t apply to employees whose terms and conditions are covered by an existing ‘collective agreement’ (for example an agreement negotiated with a trade union, which can also adjust these working time matters).

You should publish the workforce agreement for your business in writing and make it available to all employees. It’ll apply either to all employees, or to employees in a certain group. Our working time directive opt out template gives you a basis for creating your own agreement.

It’s important to remember, though:

• your employee must be over 18
• employees can choose what elements of the working time regulations they want to opt out of (apart from annual leave entitlement)
• this must be voluntary and signed in writing by your employee
• opting out can either be for a fixed period of time or indefinitely
• some businesses draft a separate workforce agreement for night workers

Employers can ask employees to work more than 48 hours in a week but this is a voluntary agreement, so you can’t dismiss your employee or treat them unfairly if they refuse.

You and your employee can terminate the opt out agreement at any time by each giving sufficient notice – the government website says that employees need to give you seven days' notice, but with written agreements they might need to give you more notice (up to three months).

It’s important to keep a record of all workers who have opted out of the statutory working hours.

Who can’t opt out of the working time directive?

That said, some staff aren’t allowed to opt out of working time regulations because of the job they do. This includes:

• airline staff
• a worker on ships or boats
• a worker in the road transport industry, e.g. delivery drivers (except for drivers of vehicles under 3.5 tonnes using GB Domestic drivers’ hours rules)
• other staff who travel in and operate vehicles covered by EU rules on drivers’ hours, e.g. bus conductors
• a security guard on a vehicle carrying high-value goods

Working time regulations for mobile workers

Additional rules apply for mobile workers under the Road Transport (Working Time) Regulations 2005. In particular, there are restrictions on what can and can’t be varied when it comes to working hours.

It's more complex because travel time counts towards working time for mobile workers. Unlike for workers with a fixed place of work, the time to travel to and from the first appointment for a worker with no fixed place of work is included in the weekly hours of work.

Working time directive – drivers’ hours

The working time regulations for road transport also apply to heavy goods vehicle (HGV) and passenger carrying vehicle (PCV) drivers. In addition, they need to follow the drivers’ hours rules that relate to how long you can spend behind the wheel.

The drivers' working time directive says that HGV and PCV drivers can’t:

• exceed an average of 48-hour working time hours a week, usually over a 17 or 26-hour period (and they can’t opt out of this)
• exceed 60 working time hours in one week
• exceed more than 10 working hours at a time, if working at night

Working time regulations breaks

HGV drivers can’t work for more than six hours without a break, and the minimum break period depends on how long they've been working:

• if working between six and nine hours in total – breaks should be at least 15 minutes, with a 30 minute break
• if working more than nine hours in total – breaks should be at least 45 minutes

Drivers also have specific obligations for resting. Read about working time directive breaks for HGV drivers and PCV drivers.

However, please note, there are temporary relaxations to the drivers’ hours rules because of coronavirus. You can sign up to email alerts to get the latest updates from the government.

Why use a working time directive opt out agreement template by Farillio?

Farillio provides legal tools and templates designed with small businesses and the self-employed in mind. Using their template that allows employees to opt out of the working time regulations will help you meet your legal responsibilities and take ownership of your company’s journey.

Our partnership with them lets us bring you quality, relevant legal documentation for your small business. Here are some other templates from Farillio that you might find useful:

• Notice of AGM template
• Annual leave policy template
• Equal opportunities policy template
• See all our business resources from Farillio
• See all our landlord resources from Farillio