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 employers.
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 opt-out.
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 draf