Working Time Directive: UK government must engage in the debate

Consultant editor Darren Newman argues the government must engage with the debate on amending the Working Time Directive if it is to ensure a European law that fits with the way the UK does business.

European law has a long gestation period. The process of consulting on proposals, reaching a common position in the European Council, seeking reports from various committees, and eventually getting a measure through the European Parliament can take years.

When a directive is adopted, member states generally have two years to implement it, and sometimes longer. This lengthy EU legislation timetable often means we put off paying attention to what is happening in Europe until a new law is imminent.

But this is a mistake. By that time, the deal has been done and there is very little opportunity to influence what the law says.

We should therefore pay close attention to the forthcoming amendment of the Working Time Directive (WTD).

In March 2010, the European Commission (EC) launched its first-stage consultation on the need for a comprehensive review of the directive, seeking views from the European social partners (unions and employers’ organisations) as to whether or not action is needed. The second stage of consultation will be about the content of a new WTD, and at that point the debate will get serious.

Failure

The last attempt to amend the WTD resulted in failure, with the European Parliament refusing, among other things, to accept the permanent retention of an opt-out from the 48-hour limit on average weekly working time. Since then, a new parliament has been elected, with a marked shift to the right. It may be this new attempt from the EC has a better chance of success.

It is, however, wholly unrealistic to expect the directive to be repealed or the limit on average weekly working hours to be removed. In May 2010, the Chartered Institute of Personnel and Development caused a bit of a stir by calling for the repeal of the directive, based on its view that the limit on working time is irrelevant to the real issue of limiting unhealthy working patterns (see box below).

We could debate that issue, but there is little point: limits on working hours are a fundamental part of European employment law. Article 31(2) of the Charter of Fundamental Rights of the European Union states: “Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave”.

Bind

While the charter does not of itself create legal rights in the UK, since the Lisbon Treaty came into force it does bind the EU institutions. The WTD cannot simply be repealed without breaching the charter.

CIPD calls for Working Time Directive to be scrapped

The Chartered Institute of Personnel and Development (CIPD) has called on the European Commission to repeal the Working Time Directive (WTD) after more than one-quarter of employers named it as the legislation that most hinders their business.

The call comes as the European Commission conducts a review of the WTD legislation, which restricts the working week to 48 hours. The UK government successfully negotiated an opt-out to the rules last year, but the CIPD believes the law should be scrapped altogether.

A joint CIPD/KPMG survey of 800 employers, published in May, found that 28% believed the directive was the legislation of most hindrance to their business.

Mike Emmott, employee relations adviser at the CIPD, said: “We believe the Working Time Regulations in particular have negligible value in limiting unhealthy workplace behaviour. We are, therefore, calling for its repeal in the context of the review currently being undertaken by the European Commission.”

The commission’s review of the existing working time rules will start with a thorough evaluation of the current provisions and issues in their application, before considering the different options to address these issues.

The review will be shaped by a set of policy objectives, including protecting workers’ health and safety, improving balance between work and private life, and giving businesses and workers flexibility without adding unnecessary administrative burdens for enterprises, especially small- to-medium-sized businesses.

A revision of the directive could nevertheless have benefits for employers across Europe. The EC’s consultation document stresses the importance of flexibility, and this might foreshadow a move to increase the reference period for calculating weekly working hours.

More flexibility could be given in the scheduling of compensatory rest where the nature of an employee’s work makes it difficult to schedule the rest breaks otherwise required by the WTD, and there is a clear need to amend the rules in relation to on-call time.

Decisions from the European Court of Justice mean time spent in the workplace, but on call, counts as working time, even if the employee is given appropriate facilities to rest.

This causes problems in a number of sectors, particularly the care industry, where an employee sleeps on the premises, ready to deal with any emergency that may occur. I have often joked about the need to wake such employees up when it is time for their rest break, but the problem is real.

Risk

While there are benefits to be gained for employers across Europe from an amended WTD, the risk is the amendments could result in the loss of the treasured opt-out from the 48-hour maximum working week. When the coalition government pledges to work to “limit the application of the Working Time Directive in the UK”, it is surely this opt-out it has in mind.

The opt-out was something on which the UK government insisted when the directive was first adopted, and at first it was only the UK that allowed all workers to opt out of the maximum working week.

However, the consultation from the EC points out that five member states currently use the opt-out across all sectors of the economy, and a further 10 apply it in particular sectors. The UK is, therefore, not isolated on this, and if it plays a smart game there is no reason why the opt-out cannot be retained.

It may, however, need to be changed. More protection could be given to workers to ensure their opt-out is genuinely voluntary. The last attempt at revision of the directive provided for the opt-out to be agreed separately from the contract of employment, to emphasise it was not dependent on it.

There could also be a ban on making offers of employment conditional on opting out or on asking workers to opt out during their probationary period.

Responsible UK employers might consider these safeguards a price worth paying for getting the issue of working time sorted out once and for all.

It is important the UK engages with the debate. If we opt out of this, some years down the line we may end up with new rules that simply do not fit with the way the UK does business. That will lead to further complaints about being ruled by Brussels, but we will only have ourselves to blame.

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