In Focus: Farm working hours

An overview of farm working hours from CLA Senior Legal Adviser Roberta Sacaloff, including working time regulations, types of working hours and paperwork and how members can benefit from the CLA’s expert advice

This article looks broadly at farm working hours, including what time farmers can work until.

Farming or agriculture has a wide definition and, as well as growing crops, it includes dairy farming, grazing and pasture land, orchards, woodland, market gardens and nurseries.

An overview of farm working hours: why do farmers work at night?

The answers to questions, such as “how many hours do farmers work a day?” or “what time can farmers work until?” and issues relating to farm working hours vary. It depends on the size of the farm, the number of personnel, the type of agriculture, the weather and the seasons.

Livestock farming requires round-the-clock cover during calving and lambing – the arrival of calves and lambs doesn’t run to a timetable.

Cows must be milked regularly, two or three times a day, and, if the dairy farm has a three-times-a-day system, milking can start early in the morning, around 4am or 5am and finish late - 9pm or 10pm.

Horticultural crops, including fruit, are seasonal, and since the produce is highly perishable, it has to be picked and packed quickly.

Arable farming is also seasonal and is dependent on the weather, particularly during the harvest and planting seasons.

Farmers work at night, generally to get the job done when the weather conditions are suitable. The combine headlights and farming noise at night can disturb those in the vicinity, particularly during harvesting. The wind direction and speed, the temperature and humidity level need to be right for crop spraying, and it can be that the weather window is around 4am.

Generally, someone needs to be on hand to deal with mechanical breakdowns. These can happen at any time of the day or night. Farmers have to deal with security concerns and other emergencies at night (and weekends), such as flooding, storm damage, etc.

Working Time Regulations and agriculture

Employers are under a legal duty to take care of their employees’ and workers’ health and safety, and this includes protection from overwork and working consistently long hours.

The working hours of most employees and workers, including agricultural workers, are regulated by the Working Time Regulations 1998, which derive from the European Working Time Directive.

The regulations cover both employees and workers. Workers are a sort of hybrid category – people who while not being in business, provide a personal service but are not employees. Generally, workers are under no obligation to accept any work that is offered to them and the employer is under no obligation to offer them work, for example casual workers.

The position is somewhat different in Wales, because the Agricultural Wages (Wales) Order 2022 (AWO) covers certain aspects of working hours.

Adult workers

Daily and weekly working time are generally a matter of contract. However, the regulations impose an average 48-hour working week on adult workers, (i.e., those aged 18 or over). This can be thought of as an eight-hour day, six days a week. In Wales (for minimum pay purposes) there is a basic eight-hour day, 39-hour week. The average number of hours is worked out over what is known as a reference period. Agriculture is regarded as a special case and the reference period is a rolling period of 26 weeks.

Adult workers can “opt-out” of the 48-hour working week limit, if they chose to do so but they cannot be subjected to a detriment or be dismissed if either they do not do so or, having opted-out, they opt back in again.

In England, under the regulations, workers are entitled to a break of 20 minutes when they work six or more hours in one go or shift. In Wales, the AWO is more favourable and provides for a rest break of 30 minutes when working 5.5 hours or more.

Workers are entitled to 11 hours daily rest between working days and to either an uninterrupted rest of 24 hours a week or 48 hours a fortnight.

Having said this, you may be thinking: but what about these long hours and the urgency at certain times? The regulations cover this scenario. The rules about rest breaks and rest periods are dis-applied during very busy times, for example, harvest. Instead, workers are entitled to what is known as compensatory rest. If that is not possible, they must be provided with adequate protection for their health and safety.

Young workers

The rules are stricter for young workers, i.e., those aged 16, above school leaving age to 18. The maximum that they can work a week is 40 hours and it is not possible for them to opt-out of this limit and work longer hours. They must be given a break of at least 30 minutes, if their daily working time is longer than 4.5 hours. They are entitled to daily rest of 12 hours and 24 hours’ weekly rest.

Night workers

Under the regulations, night workers are those who, as a normal course, work at least three hours of their daily working time during the night time being a period of at least seven hours, which includes midnight to 5am and which, in the absence of any other agreement, is 11pm to 6am. In Wales, the AWO defines night work slightly differently, as work, apart from overtime hours, done between 7pm and 6am the following morning, which excludes the first two hours of work done in that time frame. Night workers cannot opt-out of the 48-hour week.

Seasonal workers

Seasonal workers are temporary personnel who are needed at certain times of the year for various jobs, for example to pick and pack fruit.

If they are employees, rather than workers, they will be fixed-term employees under the fixed-term (Prevention of Less Favourable Treatment) Regulations 2002, since the statutory definition of fixed term employment includes the completion of a particular task as well as the expiry of an employment contract on a set date. They have a statutory entitlement not to be treated less favourably than permanent employees doing the same or a similar job, unless the employer can justify it, i.e., show that it has a good business reason for doing so.

The general law relating to working time, referred to above applies to seasonal staff.

Paperwork: working time record keeping obligations

The regulations require employers to keep “adequate” records of their employees’ and workers’ working time for two years from when the records were made to show whether certain (but not all) of the working time limits are complied with. These records include maximum weekly time, maximum daily and weekly working time in the case of young workers. Insofar as the regulations do not specify the records, it may well be that pay records are sufficient.

Employers also have to keep up to date records of all those who have opted out of the 48-hour week. This could be a list of names and along with a copy of the opt-out agreement. There is no need to record these workers’ actual working hours.

Self-employed farmers and working hours

The working hours of farms business owners who are sole traders or members of a farming partnership, or who are otherwise self-employed, are not regulated at all. Their working hours will, of course, depend on what they do and the extent to which they are hands on. However, many can work very long hours and also at night. This may not just be farming but also catching up with their administration and compliance work, as this can be the only time to do so, after a long day.

Summary

Although working hours are regulated, there is scope for flexibility, particularly at peak times.

Farming businesses who think that they may be affected should check their employees’ and workers’ terms and conditions as well as their records to ensure that they are complying with their obligations.

If you’re a CLA member and would like to speak to one of our experts, get in touch with our national office or call the national team on 020 7235 0511.

Key contact:

Roberta Sacalof
Roberta Sacaloff Senior Legal Adviser