It is almost six years since the Working Time Regulations 1998 implemented the Working Time Directive (WTD) in the UK. The EU Commission is conducting a review of how the directive is working.
The DTI has issued a consultation paper seeking views on possible changes to the WTD, notably removing the use of the ‘opt-out’ from the maximum 48-hour working week. Consultation closes on 22 September.
Q What are the key proposals put forward by the Commission?
A The EU Commission feels the WTD opt-out gives inadequate protection to staff. Suggestions for strengthening their rights include a separation in time between entering a contract of employment and giving consent to the opt-out, and obligatory regular reviews of individual consent. If protection for employees is not increased, the Commission’s preference is to phase out the opt-out.
Q Are there any other alternatives to the opt-out for staff who work long hours?
A The specific characteristics of some work mean that all or part of the time spent on such work may fall outside of the 48-hour limit. Staff whose working time is not measured or predetermined, or whose working time is determined by the workers themselves are not limited to a 48-hour week. There is a lack of clarity about the scope of these exceptions, but they only apply to workers with a degree of freedom in relation to their working time. It seems likely that those whose work falls entirely within this exception will be a rarity.
Q What else is the EU Commission seeking to change?
A The WTD does not set an absolute limit on weekly working time. Rather, an average is calculated over a maximum period of four months (17 weeks in the UK). It proposes that this reference period should be extended. The Commission is also seeking to clarify the definitions relating to working time, and has indicated the need for a definition of the inactive part of on-call time.
Q Where do things currently stand with regard to ‘on-call’ time?
A Currently, the WTD defines ‘working time’ and ‘rest period’. However, it has become apparent that large numbers of workers are ‘on-call’ for periods of time, whether at the employer’s premises or elsewhere. There have been a number of cases, particularly in relation to doctors, which have broadly established that time where an employee is required to be on the employer’s premises is working time, even if they are entitled to sleep when their services are not required.
The Commission is in favour of a definition of the inactive part of on-call time that would not qualify as working time.
Q What does the Health and Safety Executive (HSE) say about long hours working?
A There is no doubt that the HSE regards long working hours as having a negative effect on health and safety.
It is focusing on work days lost through stress with the identification of seven ‘workplace stressors’. One of them is the ‘demands’ of the job, including having too much work to do.
Regardless of any changes, as the HSE campaign on stress gathers steam, long working hours are likely to come under increasing scrutiny.