UK 48-hour opt-out now unlikely to be scrapped

Members of the Employment Lawyers’ Association visited the European
Commission last month to present the results of the ELA/Personnel Today Working
Time Opt-out survey, and to find out the latest thinking on future trends in
employment regulation from Brussels

Fernando Pereira – principal
administrator in the directorate for general employment and social affairs of
the European Commission – was pleased to receive the results of the exclusive
ELA/Personnel Today Working Time Opt-out survey, cond-ucted among 750

The survey revealed in January that nearly 80 per cent of organisations
wanted to keep an opt-out clause in the Working Time Directive. Contrary to all
our expectations, he indicated that the outcome of the opt-out is far less
clear-cut than we’d imagined.

We had expected the opt-out to be abolished. But following a European Court
decision in a case involving the working hours of doctors, where on-call hours
were held to be working hours, more member states have started using the
opt-out, and previous hostility towards it has reduced.

The commission learned a great deal from a report from Professor Catherine
Barnard, who studied the use of the opt-out. It shows that some employers use
it to simplify their record keeping, and that of the 46 per cent who have
signed for the opt-out, only 16 per cent were actually working more than 48
hours per week over a long period. The largest numbers were in the catering and
construction sectors.

The commission has not been able to obtain any statistical evidence
concerning the implications for health and safety of long working hours, nor a
comparison of the rate of accidents at work in sectors with a high usage of the

Now, Pereira thinks the opt-out is unlikely to remain as it is, but also
unlikely to be abolished altogether. It may continue in a restricted form,
applicable only to certain sectors, or be generally applicable with an upper
hours limit. However, he said that it was unlikely the present regime will be
changed before the end of 2005, possibly later.

Any changes made may well be accompanied by tighter rules on record keeping,
and more emphasis on health and safety inspections.

One lawyer in the commission said that more needed to be done by UK
employers to keep records and to monitor the health and safety of staff who
work longer hours, to comply with the spirit of the directive as drafted.

Meanwhile, the commission is occupied with bringing the 10 countries due to
become member states next year up to European speed on their local empl-oyment
laws – a very large task, with 17 employment-related directives to implement.

Our visit revealed modifications of the European Works Councils (EWC)
Directive are in the early stages. Anticipated changes include greater
involvement of European trade unions, and a change in the definition of
consultation to be "with a view to reaching agreement". The threshold
figure for EWCs of 1,000 staff is unlikely to change.

Our overall impression was that the pace of introducing new legislative
initiatives is slowing. In part, this may be because the commission is
preoccupied with EU enlargement.

In part, it is also because the commission is taking a less prescriptive
approach to new regulation, by encouraging social partners such as the European
Trades Union Congress and European employers’ body UNICE to agree by consensus
(for example, on the Socially Intelligent Restructuring Initiative on redundancies).
However, this laissez-faire approach is unlikely to continue if consensual
results aren’t achieved.

Any consultation on proposed changes would not take place before April or
May next year.

By John Evans, Chairman, ELA International

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