Q&As

What are the contractual implications where the contract of employment requires an employee to work more than 50 hours a week, and the employee then wants to opt back into the 48-hour weekly limit? If as a result of opting back in the employer and the employee would need to agree to new terms, and the employee is dismissed following a failure to reach agreement, could this be viewed as a detriment or automatic unfair dismissal?

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Published on LexisPSL on 13/02/2020

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • What are the contractual implications where the contract of employment requires an employee to work more than 50 hours a week, and the employee then wants to opt back into the 48-hour weekly limit? If as a result of opting back in the employer and the employee would need to agree to new terms, and the employee is dismissed following a failure to reach agreement, could this be viewed as a detriment or automatic unfair dismissal?

Unless the employer has first obtained the worker's agreement in writing to opt out of their rights, the worker has the right to work no more than an average 48-hour working week.

In order to be valid, an opt-out agreement must:

  1. be in writing

  2. be made with each individual worker that it applies to separately

  3. state that it is disapplying the 48-hour maximum working week rather than simply specifying a number of hours of work

The worker must be able to terminate the opt-out agreement by giving written notice. If the opt-out does not include a specific notice period, then the worker must give seven days' notice. An employer can require more notice (up to a maximum of three months) but must specify this in the opt-out agreement.

See Practice Note: Hours of work and working time.

As to the effect of termination of the opt-out agreement, it is not clear what terms an

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