Opt-out agreements allow employees to work more than the standard 48-hour average weekly working time limit set out in the Working Time Regulations (Northern Ireland) 2016. A valid opt-out agreement must be entered into voluntarily by the employee. An employer can ask an employee to opt out but cannot dismiss or treat an employee unfairly for refusing. It is good practice to clearly explain the purpose of the agreement and allow employees sufficient time to consider whether they wish to sign.

Opt-out agreements must be recorded in writing and retained by the employer. The document should clearly state that the employee agrees to disapply the 48-hour average weekly limit and confirm that the decision is voluntary. Employers should also ensure that employees understand their right to withdraw consent at a later stage. Maintaining accurate records of signed agreements is recommended for demonstrating compliance during inspections or disputes.

Employees who have signed an opt-out agreement retain the right to cancel it at any point by giving written notice. The statutory notice period is at least seven days, although the agreement itself may specify a longer notice period of up to three months. Employers should ensure that any notice provisions are clearly stated in the agreement and applied consistently. Once notice has expired, the employee must no longer be required to work beyond the 48-hour weekly average unless another valid opt-out agreement is in place.

The presence of an agreement does not remove the duty to safeguard employee health and safety. Excessive working hours may increase staff fatigue and/or reduce productivity levels. Accordingly, employers should maintain accurate working time records and review workloads regularly to ensure that extended hours remain appropriate and safe for employees.

It is important to note that certain categories of workers are subject to additional rules. For example, young workers under the age of 18 cannot opt out of working time limits, and specific sectors such as transport and aviation may be governed by separate working time regimes. Accordingly, employers in regulated industries should ascertain whether their ability to rely on opt-out agreements is affected.

This article was provided by Madison Bowyer, an Associate in the Employment Law Group at Arthur Cox NI. 

T:+44 28 9026 5886 
E: Madison.bowyer@arthurcox.com 
https://www.arthurcox.com/