Exclusions

Some groups, such as the armed forces, are completely excluded from the WTR. There are also “special case” exclusions that apply to workers in a range of activities, such as drivers, guards and platform staff on the railways. These workers are still entitled to the 48-hour average working week, 5.6 weeks’ paid leave and night worker health checks, but are excluded from night worker limits, rest breaks and rest periods. Doctors in training gained rights from 1 August 2004, but the 48-hour week was phased in over a number of years before it came into effect fully in August 2009.

The other “special case” exclusions cover:

• workers whose activities are such that their place of work and place of residence are distant from one another;

• those engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, such as security guards and caretakers;

• activities involving “the need for continuity of service or production”; and

• situations where there is an unforeseeable surge in activity, for example, activities that are affected by unusual or unforeseeable circumstances “beyond the control of the worker’s employer”; exceptional events which “could not be avoided”; or accident or imminent risk of accident.

The European Court of Justice (ECJ) has ruled that emergency workers are covered by the Working Time Directive. The case concerned Red Cross rescue workers dealing with unforeseen events. The ECJ held that emergency workers are not dealing with events that are unforeseeable, so they are covered by the directive (Pfeiffer v Deutsches Rotes Kreuz [2005] IRLR 137).

Security activities are among the “special case” exclusions. However, an employment tribunal has ruled that all security guards are entitled to rest breaks. Although the security industry is not subject to the law requiring that workers have a 20-minute rest break every six hours, it must do “the next best thing”, such as allow a number of shorter rest periods or one longer period.

Children are not covered by the WTR. An Employment Appeal Tribunal (EAT) ruled that a newspaper delivery boy did not have the right to paid holidays under the WTR as he was not a “worker” (Addison t/a Brayton News v Ashby UKEAT, 17 January 2003).

Instead, the Children (Protection at Work) Regulations 1998 control the working time of children aged 14 and 15. The minimum age from which children are allowed to work is 14, although 13-year-olds may be allowed to do some light work which can be specified in local by-laws. These can impose rules on occupations, hours, rest breaks and holiday times, but cannot override those specified in the regulations.

The regulations set a maximum daily working time on non-school days of five hours for those aged under 15. Maximum weekly hours are 25 and 35 respectively. Schoolchildren must not work for more than four hours in any day without a rest break and must have at least two weeks free from both school and work.