EU plans to harmonise the working rules across all member states is bad news
for the UK and companies must act to fight the changes
The Working Time Regulations, based on a 1993 EU directive, have always
given the UK a pseudo get-out clause.
This stated that individual employees can agree with their employers that
they will not be covered by the general restriction of a 48-hour maximum
working week. Uniquely among EU member states, the UK uses this individual
opt-out provision in its national legislation.
In accordance with provisions in the EU directive itself, the EU Commission
has now decided to carry out a review of whether or not it is necessary to
retain the individual opt-out in the directive. Being carried out by a group of
Cambridge University academics – led by Professor Catherine Barnard – the team
has been asked to produce a report by the end of this year, based on the use of
the opt-out in the UK.
There is a clear risk that the individual opt-out could now be lost – if the
rest of the EU doesn’t need it then why should the UK?
The reality in the UK is that the individual opt-out brings significant
benefits to the UK’s flexible labour market, which would be lost if the opt-out
were to be removed. It is one of the few clear and certain provisions in the
Working Time Regulations that can be used to make the regulations more
appropriate for the UK.
The individual opt-out is also a provision that both employer and employees
can understand and does not involve a bureaucratic structure for its
implementation, or doubts about its applicability.
In manufacturing, the individual opt-out is used by different people and
companies for different reasons. All of them tend to reflect a wish to comply
with the law, rather than the cavalier attitude of avoidance that may exist in
other EU member states. For example, the opt-out is often used by service
engineers who have to travel from place to place to repair or maintain
equipment their employer has provided.
It is also used by senior managers and employers to avoid the uncertainty
over a derogation (EU speak for an exception). It states that the working time
rule does not apply to "managing executives or other persons with
autonomous decision-taking powers".
It also avoids the burden of such managers keeping detailed records of all
working time spent at home and travelling.
Should the opt-out be removed, it will almost certainly lead to extra costs
for companies and pressure on agreements for longer averaging of working hours.
There would also be a need to examine existing working practices that may
involve inconvenient changes for both employers and employees.
Currently, the UK Government has not expressed an opinion as to whether or
not it would oppose any EU proposal to remove the individual opt-out.
However, given her views on the UK’s long hours culture, it may,
unfortunately, be all to easy for the current Secretary of State for Trade and
Industry Patricia Hewitt to agree to its removal.
At this stage, companies making use of the individual opt-out must continue
to press the UK Government and the EU Commission on why it is still needed.
However, being pragmatic, such companies also need to consider how they would
have to change their employment practices to accommodate its ending should we lose
our unique position.
Should we seek to gain agreement that the averaging period for the maximum
48-hour working week should be 52 weeks rather than 13, for example?
If the EU directive is to be changed, then the opportunity should be taken
to make the whole EU Working Time Directive simpler.
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While the commission will not make its views known until later next year, if
we are to have influence, we need to make our views known now.
By Peter Martin, Director of employment policy at the Engineering
Employers Federation
