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The legal implications of working round the clock

Posted on by from Blake Morgan

The ubiquity of the modern smartphone has changed the way we work and socialise – but what happens when employees aren’t permitted to ‘switch off’?

As with any HR issue, the priority is to ensure that the employer and employee alike are clear about what the expectations are; the instance here being if staff are supplied with a ‘work phone’. Is the phone for emergencies only, or is the employee expected to be available out of hours? If so, what are the hours they should be available?

Know employees rights to rest

Protection for workers comes from the Working Time Regulations 1998 (WTR), which gives employees the right to rest breaks and holiday.

These regulations state that workers must have a rest period of 11 consecutive hours per 24 hour period, and an uninterrupted rest of 24 hours per seven day period or 48 hours per 14-day period.

There are some permissible exceptions for certain jobs specified under the WTR, where continuity is required, but this would need to be in a formal collective agreement or workforce agreement. 

With this in mind, you as an employer, must ensure that a worker can take their rest – but you don't need to force them to. If an employee voluntarily works during rest periods or rest breaks, for example, there is no problem with this, provided it doesn't affect their own or others' health and safety, and provided they don't exceed the 48-hour working week (unless the worker has opted out of the 48-hour week). 

A worker can raise a claim if the employer has refused to permit them to have their rest period, or if the worker has been subjected to a detriment for exercising their rights to rest (which could include, for example, being overlooked for a promotion).

If you as an employer expect out of hours device checking whilst your worker is on holiday, you could either be faced with a request for holiday to replace the time lost, or find yourself facing a claim for compensation.

The solution? As ever, it’s a question of balance. There could be occasions where an employee will take the odd call outside of hours, but if they’re regularly expected to check and respond to emails, he or she could begin to make a case that they are always working, which could give rise to a claim if it interfered with their WTR right to rest. However, 11 hours' rest is not that long – so a worker who checks their device from 8am to 9pm is still likely to be within the WTR rest limits. 

Tips for employers

Employers need to be wary of those who work out of hours to ensure that they are not caught out by the National Minimum Wage legislation, and also to ensure that intermittently checking devices is not leading to stress. 

Ultimately though, it’s up to workers, as some may feel they are less stressed if they check what is going on out of hours. 


Help employees manage their rest periods:

  • Create an atmosphere where rest periods can be observed.
  • Ensure that such breaks are scheduled as part of the organisation of working time.
  • Ensure that workers are not under pressure to forego breaks, whether directly from yourself or from other workers who are choosing not to take their breaks 
  • If staff are provided with a work phone, have a published mobile device policy that covers their usage at work and out of hours. If workers will be using their own device for work, a Bring Your Own Device policy is essential, primarily to ensure information is kept secure.
  • Agree how a worker will be contacted out of hours if required. For example, they may not be expected to regularly check emails but might be required to answer phone calls or respond to text messages.

Advice for employees

  • Instead of constantly checking emails, allow yourself five minutes once an hour, if necessary, and then put the phone away again.
  • If you’re on holiday, agree with your employer that you will not check emails.
  • Ask yourself – can it wait? If it can, worry about it during work hours. 
  • Bear in mind that the more you respond out of hours, the greater the expectation may be for you to continue doing so.
  • Raise any issues of stress or excessive workload with your employer before they get out of hand.
Tim Forer

By Tim Forer

Blake Morgan

Tim is a barrister and partner in the employment team at Blake Morgan.

Blake Morgan

Blake Morgan

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