Responding to the European Commission’s January 2004 evaluation of the EU working time Directive, trade unions and employers put forward opposing views on the scope under current UK legislation for individual employees to opt out of the 48-hour weekly limit on average working time, with the TUC calling for its removal and the CBI for its retention.
On 5 January 2004, the European Commission published a Communication evaluating the operation of the 1993 EU working time Directive (93/104/EC), in particular the application of two aspects of the Directive earmarked for review seven years after its implementation deadline:
- the provision enabling Member States to allow individual employees to opt out of the 48-hour weekly limit on average working time; and
- the scope for derogations from the Directive’s four-month reference period for the calculation of average weekly working hours.
The document also reviews the case law of the European Court of Justice (ECJ) on the interpretation of the Directive’s provisions, and highlights the link between revising the working time Directive and improving the compatibility of work and family life.
The Commission is seeking the opinion of the Council, European Parliament and other EU institutions on the need to revise the current text of the working time Directive or introduce other, not necessarily legislative, initiatives. The document also initiates the first stage of consultation with the EU-level social partner organisations, who are invited to give their opinion on the need to amend the Directive as regards the scope for individual opt-outs and derogations from the reference period in respect of the 48-hour working week.
The UK’s use of the 'individual opt-out'
The key aspect of the Commission’s report for the UK concerns the scope under current UK legislation for individual employees to opt out of the 48-hour weekly limit on average working time. The UK is the only EU Member State to have taken up this option, as permitted under Article 18(1)(b)(i) of the Directive, in a general way (though limited use of the individual opt-out is now permitted by Luxembourg and France for certain groups of workers).
Drawing on a report it commissioned from academics at Cambridge University (on which see 'Opting out of the 48-hour week', C Barnard, S Deakin and R Hobbs, Industrial Law Journal, December 2003) the European Commission notes, among other points, that '[UK] legislation and practice do not appear to offer all the guarantees laid down by the Directive', and that 'the main characteristics of the system governing working time have remained unchanged despite the entry into force of the Directive, mainly as a result of using the opt-out'. The Commission quotes statistics showing that approximately 4 million people, or 16% of the UK workforce, currently work more than 48 hours per week, but that the percentage of full-time employees who usually work over 48 hours each week is higher at 20.9%. The proportion of workers who have signed an opt-out agreement is reported to be considerably higher. A 2003 survey carried out for the Confederation of British Industry (CBI) put the figure at one-third (UK0310102N).
The Commission says that there is a lack of reliable data on the extent to which working time in excess of 48 hours a week has 'negative repercussions' on workers’ health and safety, but quotes from a 2003 study published by the UK Health and Safety Executive which argues that the available evidence supports a link between long working hours and fatigue, stress, physical health and accidents.
However, while the Commission concludes that the UK experience has shown there are 'difficulties in ensuring that the spirit and terms of the Directive are respected and that real guarantees are provided for workers', it does not propose removing the individual opt-out provision from the Directive. Instead, the Commission seeks views concerning 'the conditions of application' of Article 18(1)(b)(i).
Reaction to the report
Commenting on the Commission’s report, the Trades Union Congress (TUC) reiterated its call for the removal of the individual opt-out. General secretary Brendan Barber welcomed the consultations launched by the Commission: 'This is a much-needed review. The Commission is right to express concern at the way the Directive has been applied in the UK ... because of lax enforcement and the individual opt-out, UK workers still work the longest hours in Europe. Evidence collected by the TUC shows that many workers do not know their rights and, even if they do, many often feel pressurised by their employers to sign themselves out of working time protection. The opt-out has caused serious problems in the UK, and it cannot be allowed to remain.'
However, the opposite view was put by the CBI. Its director of human resources policy, Susan Anderson, commented: 'The Commission is right to recognise the importance of choice over working hours and the value of the individual opt-out from the working time rules. This review must not lead to the removal of that vital freedom. UK employees have more choice about the hours they work than those almost anywhere else in Europe. They value that flexibility and so do employers. We accept there must be safeguards to prevent abuse but the current legislation offers that. The Commission and the TUC have both failed to find evidence of widespread abuse. We do not believe that employers are routinely pressurising workers into signing opt-outs.'
Commentary
The scope under current UK legislation for individual employees to opt out of the 48-hour weekly limit on average working time has been a highly controversial issue in the UK ever since the Working Time Regulations were first introduced in 1998 (UK9810154F). Over recent months, ahead of the Commission report, both the CBI and the TUC stepped up their campaigning in support of their respective positions on the opt-out. In June 2003, the CBI published a report setting out its case for the retention of the individual opt-out, arguing that its removal could have a severe impact on the competitiveness of UK businesses (UK0307102N). At its September 2003 annual congress, the TUC launched a new campaign for tougher restrictions on long working hours (UK0310104F), and in December the TUC general secretary met EU social affairs commissioner Anna Diamantopoulou in Brussels and urged her to end the UK’s scope to allow the use of individual opt-outs from the 48-hour limit.
UK unions will be disappointed that the Commission’s report has not taken a stronger line against the continuation of the individual opt-out. The issue will now be the subject of a period of consultation at EU level, and the TUC and the European Trade Union Confederation will no doubt continue to press for the opt-out provision in the Directive to be ended. However, the outcome of the consultation process is far from certain. One factor which may reinforce the case for maintaining the status quo is the introduction or consideration of limited opt-out provisions in other Member States, in some cases prompted by the recent ECJ ruling that time spent by doctors on-call constitutes working time (EU0310202N). Some new Member States joining the EU in 2004 also want to make use of the opt-out provision.
The UK government is reported to be determined to retain the opt-out. The Department of Trade and Industry has indicated that it be talking to interested parties in due course, but that all interested organisations should send any comments and suggestions direct to the European Commission. The Sunday Times (11 January 2004) reported that ministers were planning 'crisis talks' on the issue with leaders of the CBI and the TUC. If the UK is to resist the pressure to end its use of the opt-out, ministers may need to show their EU partners that they are willing to introduce stronger safeguards against its abuse. (Mark Hall, IRRU)