Unmeasured working clause

Where the duration of a worker’s working time isn’t measured or predetermined or they can determine it, they’re exempt from some provisions of the Working Time Regulations.

Unmeasured working time exemptions

The Working Time Regulations 1998 say that several of its key provisions don’t apply in relation to a worker where, on account of the specific characteristics of the activity in which they’re engaged, the duration of their working time “is not measured or predetermined or can be determined by the worker” themselves. These provisions are: (1) the 48-hour average maximum weekly working time limit; (2) the limits on the duration of night work; (3) the right to daily and weekly rest periods; and (4) the right to in-work rest breaks. You also don’t need to keep any records of these workers’ working time, and indeed you shouldn’t be doing so being as their working time is supposed to be unmeasured.

Who is covered?

The legislation gives the following examples of workers who might be covered by the unmeasured working time category: (1) managing executives or other persons with autonomous decision-taking powers; (2) family workers; or (3) workers officiating at religious ceremonies in churches and religious communities. In essence, the worker needs to have total control over the hours they wish to work (both in relation to when they do their work and how long they work for), or their whole working time must not be monitored, measured or otherwise determined by you. The legislative wording is quite specific here, and so it isn’t wide enough to simply cover all those employees who have managerial responsibilities. Therefore, it won’t include ordinary supervisors or line managers or indeed anyone else who’s required under their employment contract to work certain core or normal hours or to be at work for a specified length of time. It also can’t apply to anyone who’s paid hourly or who’s paid for overtime, as those are clearly inconsistent with their working time being unmeasured.

Clause implications

Our Unmeasured Working Time Clause is for insertion into the hours of work section of the employment contracts of those employees who do clearly fall within the unmeasured working time category. It assumes that the employee’s senior status will mean that they determine the whole of their working time themselves, or that their working time can’t be measured or predetermined. It also can’t then sit alongside any hours of work clause which sets out either normal working hours or variable working hours which are subject to agreement by you. In practice, our clause is only likely to apply to very few senior managing executives as most will have some level of contractual normal working hours and this means that at least some of their working time is measured or predetermined. If you can’t rely on the unmeasured working time category in relation to an employee who works long hours, or you don’t want to take the risk of doing so, consider instead asking them to sign our Opt-Out Agreement (or use our Opt-Out Clause) to disapply the 48-hour average maximum weekly working time limit. This won’t, however, opt them out of the night work limits or the right to rest periods and rest breaks.