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.