Working Time Directive: flexible friend or foe?

Many readers will be aware that the UK has reached a political agreement with the EU to retain its opt-out under the Working Time Directive (WTD) as part of a much-publicised deal also involving proposals on the rights of agency workers.  The deal is subject to approval by the European Parliament and implementation into UK law. 

But will it really promote what the EU Commissioner for Employment, Social Affairs and Equal Opportunities calls “flexicurity” in employment? And will it benefit both employers and employees who value flexibility in working hours?

Firstly we need to look at key details of the proposals.

The opt-out

The deal allows the UK to retain its opt-out from the maximum 48-hour working week.  The maximum reference period will be six months – this is the period of time used to calculate average weekly working hours. But, where an individual has opted out, an upper limit of a 60-hour maximum week will apply, calculated as an average over three months.  This means employers must keep working time records, even for opted-out workers.

The deal also encourages employers to examine requests for changes to working hours and patterns in light of business needs and the need for flexibility on the part of both the employer and the worker. But what might this mean in practice?

It would appear to mean that the UK should implement a legal right on the part of all workers to request flexible working. As such, that would go beyond the extension to all staff with children under the age of 16 that was recently proposed in the Walsh report and endorsed by the UK government. 

Whether this right would mirror existing flexible working rights in terms of process and grounds for refusal, or whether it would be introduced as a more diluted “duty to consider” obligation, similar to requests to work beyond the normal retirement age, remains to be seen.

Staff will not be permitted to opt out on commencement of employment unless they are to work less than 10 weeks per year. Those on probationary periods who opt out may withdraw their consent at any time up to six months into employment.

On-call time

This is already a complex area of law.  Currently, time spent on call at a workplace should be counted as working time, irrespective of whether the worker is called upon to actually perform any duties.

The EU deal proposes a new distinction between ‘active’ and ‘inactive’ on-call time.  Active on-call time would be time during which the worker is required to be at work, but is not required to perform any duties. This would count as working time for the purpose of calculating compliance with WTD limits.

Inactive on-call time would be, for example, time spent at home during which a worker is on-call, but not performing duties.  This would only count as working time if national law or a collective agreement so provided, in which case the maximum average working week for opted-out staff would rise to 65 hours over a three-month period.  In the absence of such a law, inactive on-call time would be neither working time nor rest time.

The deal imposes further administrative burdens on some employers that will need to separately record active and inactive on-call time.

What next?

The recent change in the EU presidency (from Slovenia to France) on 1 July 2008, and the fact that these proposals remain subject to the approval of the European Parliament, mean that their adoption is by no means a foregone conclusion. The UK has some flexibility in terms of how the changes are implemented, and will have a two-year window to do so. Therefore, any changes are unlikely to take effect before 2010.

Key points

  • The UK still has the right to opt out of the maximum 48-hour working week.
  • Flexible working is encouraged, but isn’t a legal right for all.
  • Correctly classifying ‘on-call’ time will be important as the law in this area is complicated.
  • The deal is subject to scrutiny by the European Parliament and is unlikely to come into force until 2010.

By Blair Adams, partner, Shepherd and Wedderburn

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