What the Working Time opt-out means to the UK

Simon Kent takes a look behind
the headline figures of the research into the Working Time Directive conducted
by Personnel Today and the Employment Lawyers’ Association (ELA).

The research was undertaken at
the request of the European Commission which is reviewing the UK’s opt-out. The
UK is alone in allowing employees to opt out of the 48-hour maximum working

The survey of more than 750
employers provides crucial evidence on the impact losing the exemption would
have on most UK organisations when it is presented to the commission by the ELA
next month.

Which sectors will suffer?

The survey reveals that almost
80 per cent of organisations want to keep the clause and the same proportion
believe efficiency would suffer if the opt-out were removed.

Some sectors show almost total
commitment :
● 96 per cent of catering organisations believe the opt-out should stay
● Construction: 94 per cent
● Transport: 86 per cent

Media sector organisations also
came out against the removal of the clause at 83 per cent.

Central government is the lone
dissenting voice on this question, with only 40 per cent of respondents keen to
see the opt-out go. The education sector is finely balanced between those who
want the clause (50 per cent) and those who do not (42 per cent).

Significantly, 64 per cent of
local government organisations also want to keep the clause.

How widely is the opt-out
clause used?

65 per cent of organisations
contributing to the survey are actively using the UK’s opt-out clause.
(Interestingly 61 per cent of organisations who have not signed an opt-out
arrangement with any of their employees believe the UK opt-out option should

The proportion of employees
opting out within organisations varies greatly. 28 per cent of organisations
have succeeded in getting all of their employees to sign an opt-out. 18 per
cent of organisations get less than 10 per cent of their workforce to sign an
opt out.

How many employees have
refused to opt-out?

● 56 per cent of
organisations using the clause report that no employees declined to sign the
● In 36 per cent of cases, employees did refuse to sign
● In situations where employees have declined, 83 per cent report less
than 10 per cent of their workforce have declined.

What impact would there be
on people management?

Health & Safety:
Two-thirds of organisations do not believe that removing the UK’s opt out
on the Working Time Directive will improve health and safety in the workplace.
Improving the health and safety of the workforce was a primary aim of the
legislation and yet 64 per cent of organisations say that removing the opt out
will have no effect on this whatsoever. Of those who do believe ending the
opt-out will have an effect, 22 per cent believe it would improve health and
safety while 14 per cent think the effect will be adverse.

absenteeism and cover:
66 per cent of organisation forecast no effect on
sickness and absenteeism levels while 78 per cent predict an adverse effect on
the management of holiday and sickness cover if the opt-out is removed. Not
only do employers see the removal of the opt-out as irrelevant to improving the
health of their workers, but they believe it will leave them less able to cope
with the absences they have.

Overall efficiency: 80
per cent of organisations believe that without the opt-out their overall level
of efficiency will suffer. It is not surprising to find high figures here for
the transport sector at 94 per cent, catering at 92 per cent and both the
construction and energy sectors at 90 percent. Even 75 per cent of central
government organisations believe the result would be a net decline in
efficiency even though this sector was the sole supporter of ending the

Staff turnover: 47
per cent anticipate staff turnover will be adversely affected. Here, the energy
sector and transport were most pessimistic with 70 per cent and 73 per cent
respectively forecasting bad news in the wake of the opt-outs removal. The
adverse effect on staff turnover will be felt more keenly by large
organisations. 60 per cent of respondents employing more than 50,000 workers
say the end of the opt-out will have an adverse effect on staff turnover. For
organisations of all other sizes, the figure was around 40 per cent..

Moonlighting: 46
per cent of respondents predict an adverse effect on moonlighting. By removing
the ability to work extra hours for extra money, some employers argue their
employees will find second jobs to make up their income shortfall. 67 per cent
of retail organisations and 64 per cent of transport organisation expect this
to be a problem. Half of all education sector organisations agree.

Agency staff costs:
74 per cent of respondents expressed fears that removal of the opt-out would
increase the cost of agency staff for employers. This is a widespread fear but
highest construction sector (95 per cent) and hospital (92 per cent). This
issue is also of great concern in the catering and manufacturing sectors where
77 per cent of respondents believed their agency costs would rise.

Staff rostering: 78
per cent of respondents are worried that a fully implemented WTD will adversely
affect staff rostering. Every organisation in the local government and
education sectors believe there will be negative effects on staff rostering as
a result of losing the opt-out. 96 per cent of hospital and catering
organisations also believe the effect of the move will be negative.

Seasonal demand: 69
per cent of all organisations say losing the opt-out would have an adverse
effect on managing seasonal demand in their industry. These figures were
highest in the transport, construction and catering sectors at 88, 81 and 85
per cent respectively.

What do UK employers want?

● 80 per cent of
organisations want the opt-out to be retained, but if it goes, most would – as
a concession – want the period over which working hours are averaged to
be set at 52 weeks, rather than the proposed 17 weeks. 72 per cent of
respondents supported 52 weeks, 18 per cent disagreed and 10 per cent had no

● Employers also want
more clarity over the definition of working time. 83 per cent of all
respondents agreed more attention should be given to this issue with only 12
per cent disagreeing and 5 per cent expressing no opinion. Interestingly, while
the retail and IT sectors led the way in this view – 92 and 91 per cent
respectively – central and local government respondents also thought the
definition of working time needed attention – recording 80 per cent for central
government and 79 per cent for its local counterpart.

● 71 per cent of all
organisations believe there should be a simpler mechanism available for
making workforce agreements
. The need for less bureaucracy is particularly
acute in the IT sector – 89 per cent – but it is interesting to note that even
voluntary sector organisations regard this as a significant problem with 70 per
cent calling for a new system.

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