How to opt-out staff from the 48 hour week

Review any arrangements set out in your employment policies and contracts. This note summarises the minimum standards but you should apply your own arrangements if they are more generous to employees.

The basic rule is workers must not work more than 48 hours a week. This includes employees and others providing personal service, but not the genuinely self-employed. Some freelancers or contractors qualify for this protection. If you are unsure about this, Ask a lawyer.

Compliance with the 48-hour limit is averaged over 17 weeks. So occasional long hours should not be an issue, provided that over a 17 week period you do not work more than 48 weeks on average.

Working hours includes on-call time on your premises and work done at home at your request. Time on work-training courses, working lunches and time on the phone while on call away from work premises also count towards the limit.

The 48-hour limit does not apply to workers who can decide independently on their working patterns although, in practice, it is unclear exactly when this exception applies. Special rules also apply to some specific jobs like transport workers, the armed forces and off-shore workers. 

The 48-hour limit also does not apply to workers under 18 years old. Those under 18 cannot work more than 8 hours a day or 40 hours per week.

Time spent in other jobs also counts towards the 48 hour limit, so make sure you’re aware if your staff do outside work for others or themselves.

The 48 hour limit on weekly working time will not apply if you obtain the worker's agreement in writing to work in excess of the limit. This is called an Opt-out agreement.

If your staff work over or near the 48-hour limit then try to obtain an Opt-out agreement.

The opt-out agreement should be in writing.

The worker can withdraw their opt-out consent by giving you notice, regardless of whether employment has started or not. A week's notice of withdrawal is required unless you agree to a different notice period. However, a notice period cannot be more than three months. The opt-out agreement should specify the notice period required.

The opt-out agreement should specifically say that the worker is agreeing to disapply the statutory 48 hour limit on weekly working time. If their hours of work are changing, write down the new hours in the agreement. 

An Opt-out agreement will only be valid if the employee freely consents to it, and any attempt to apply pressure to have it signed is unlawful. So it's better to have a separate opt-out agreement and not to include it in an Offer letter or Employment contract.

It is illegal to dismiss or disadvantage an existing employee for refusing to opt-out, so don’t pressure employees into signing. However, you can legally refuse to hire someone new who declines to opt-out.

You can decline to accept a worker’s request to opt-out provided you are fair and consistent in your approach (eg if you are legitimately concerned about the effect on their health).

Allowing staff to work excessively long hours might cause other legal problems like breach of health and safety rules or the duty not to injure staff. The opt-out does not remove these duties.

You must keep a written record covering the last two years showing which workers have opted out. You should also keep a record of the working time of staff that have not opted out.