Working Time Directive in present form will complicate flexible working rights

Flexible working law could be thrown into disarray if the Working Time Directive goes through the European Council in its current state on Monday, according to an expert.

The right to request flexible working could be extended to every employee under a new provision in the EU directive concerning the reconciliation of working family life.

Just last month, the UK government extended the right to request to parents of children aged 16 and under, following a review commissioned by the government.

But David Yeandle, deputy director of employment research at manufacturers’ body the EEF, warned that the EU directive in its current state could supersede this.

He told Personnel Today: “There is a new provision coming into the EU Working Time Directive, which was hardly there before, to do with the reconciliation of working family life. Effectively, it could be read as extending the right to request to everybody, and making it more difficult for employers to be able to reject the request purely on the basis of business reasons.”

Yeandle said because the wording now implies an employer has to balance the flexibility of an individual’s requirements with that of the business, it will no longer be deemed acceptable to turn down requests based on business reasons alone without considering the employee’s needs.

Currently, employers have eight reasons to reject requests to work flexibly, including the “burden of additional costs”, and “inability to reorganise work among existing staff”.

Yeandle said: “The wording of the EU directive is at complete odds with the decision the government has just made about the right to request – ie, limiting it to those with caring responsibilities, and that employers can reject requests for genuine business reasons. But there is a serious danger that if the wording stays as it is in the directive, it would put enormous pressure on government to extend it to all employees.”

There is no derogation at present by which the UK government can be exempt from this clause in the Working Time Directive, although it is trying to get the wording changed, according to Yeandle.

The directive will be debated on Monday at the European Council along with the Agency Workers Directive. Yeandle said it is “less likely” to go through on Monday because there are more areas of contention within it.

“There is an added complication that the European Parliament will take greater interest in the Working Time Directive than the Agency Working Directive. So even when it is agreed at the European Council, it could still be subject to further changes and be less employer friendly in the long-term,” Yeandle said.

Click here for more on the Agency Workers Directive going through the European Council on Monday.

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