UK needs clarity over the opt-out for working time

Rather than arguing over whether the UK’s 48-hour opt-out should stay or go,
perhaps now is the time to consider some kind of voluntary system

For parents and anyone in education, the end of
term is in sight. In workplaces, this brings to mind the Working Time
Directive, currently under scrutiny by the European Commission.

The directive already requires all employers in the UK to ensure that
workers, including temporary agency staff, are afforded 20 days’ a year paid
holiday accruing from their start date (although this can include public
holidays). However, the most controversial recent measure concerns limiting the
number of weekly working hours to 48 on average over any 17-week period. The UK
is the only EU member that lets people opt out of this maximum restriction. But
the commission is currently considering forcing the UK to amend or withdraw its
opt-out system.

UK views on the opt-out system are polarised. The CBI wants the opt-out
retained, while the TUC advocates the abolition of the opt-out.

The CBI argues on the basis of individual choice. In its view, the Working
Time Directive is overly bureaucratic and imposes a heavy burden on small
businesses to monitor their employees’ working time. No doubt the CBI will be
heartened by recent statements from France, where the Government is
reconsidering the 35-hour-a-week maximum, introduced in 1997. The experiment
has been hailed as a financial disaster, costing France billions and
demoralising the workforce.

The TUC, meanwhile, has produced a report on the issue which makes
interesting reading. The TUC thinks employers abuse the opt-out, usually by
making it an acceptable part of business bureaucracy. It considers the
enforcement regime in the UK weak, and argues that the issue is a health and
safety one. Many, claims the TUC, are pressured into accepting opt-out
agreements.

It also argues that employees do not understand that they do not have to
sign an opt-out agreement, and that by agreeing to opt out, they restrict the
development of collective bargaining on working time. The long working hours
culture in the UK, states the TUC, reinforces the glass ceiling and poses
problems for those who want, or may have, commitments outside work.

Employment lawyers and HR practitioners will recognise some force in the TUC
argument that employees may feel pressured into accepting the opt-out and may
not be aware of their legal right to withdraw from it. Common practice includes
an agreement to opt out in a standard employment contract. The clause will also
normally refer to the employee’s right to withdraw their consent, but usually
only because this enables the employer to obtain a longer notice period before
the withdrawal becomes effective.

In practice, very few employees do withdraw their agreement to work over the
48-hour average. That is surprising as it is increasingly common to hear people
in the UK talk about concerns over their work-life balance.

There is, however, a real awareness that working hours in the UK are higher
than in other countries. According to Eurostat, we in the UK are twice as
likely to work long hours as other EU citizens. But the complete loss of the
opt-out would be perceived as unfair by those hardworking employees who choose
to maintain their standard of living by running two jobs, or frequently working
overtime. While the TUC recognises that long hours are bad for health, it does
not mention the financial worries that can also cause great stress. Many of us
value our freedom to negotiate and choose our own working arrangements. So what’s
the alternative?

When Sunday working was permitted, employees had to be given a written
statement in a prescribed form explaining the effect of an-opt out notice in
clear and simple terms (unequivocally: the right to withdraw from Sunday
working and the right to complain to an employment tribunal).

Is the way forward now to set out in a separate document for employees their
rights in relation to working time and opt-outs? This would make it clear to
employees that the opt-out was not something they were bound to agree, and it
would still give them the freedom to choose. There is a strong case for the
opt-out to be retained in the UK, but its voluntary nature should be reinforced
in a manner more akin to the Sunday working requirements.

By Nicola Walker. Employment partner, Hogan &
Hartson

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