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How new rules will impact UK working week opt-out

The European Parliament has recently increased the reference period for calculating the 48-hour maximum working week from 17 to 52 weeks, potentially affecting the UK working week opt-out provisions. Julie Morris, partner in the Russell Jones & Walker’s Employment Department talks to Greg Bousfield about the changes...

Opinion is divided as to whether the Council of Ministers will follow the European Parliament’s recent decision to end the UK’s Working Time Directive (93/104/EC) opt-out, but Parliament’s amendments taken at the same vote may substantially alter how a continued opt-out functions in the UK.

The Parliament increased the reference period for calculating the 48-hour maximum working week from 17 to 52 weeks, and also opened up the possibility that member states can calculate on-call working hours in a different way.

“Averaging over a year will make quite a lot of difference,” comments Julie Morris, partner in the Russell Jones & Walker’s Employment Department. “I think you will find that a lot of people will work more than 48 hours for short periods but over a year it would take quite excessive weekly hours in order to do that.”

In the UK, the Directive takes the form of the Working Time (Amendment) Regulations 2002, which are administered largely by local authorities and the Health and Safety Executive (HSE). Breach of the law’s rest break and holiday requirements are dealt with by employment tribunal claims, and local authorities/HSE can issue fines for breach of the maximum working time provisions.

“At the moment an individual can agree in their employment contract to opt out of a 48-hour working week,” Morris explains. “Employees can’t be forced to sign an opt-out and cannot be submitted to a penalty but you often find the opt-out is incorporated into the contract of employment and individuals just sign up to it.”

If employees haven’t signed up to an opt-out agreement, “the employer is supposed to monitor their working hours to ensure that they are not working more than 48 hours over a 17-week period,” she adds. “However, you would probably find that there are a lot of people working more than 48 hours a week without an opt-out agreement from their employees.”

The Trade Union Congress (TUC) says that many employees are not aware of the voluntary nature of the opt-out, or regard compliance fatalistically. The TUC believes that around 3.6 million people in the UK are now working more than 48 hours over 17 weeks, with or without an opt-out provision in their contract of employment. If the Council took on the Parliament’s extended reference period, that figure would be cut in half. That would be further reduced by about one third if the autonomous workforce, which is not covered by the maximum hours requirements of the Directive, is taken into account, says the TUC, which leaves about 1.2 million people working more than 48 hours a week who won’t be able to do so if the opt-out is ended. The TUC is concerned that the HSE’s working time unit’s staff of seven is inadequate to implement Regulation breaches, which mostly come to light during random workplace inspections by the labour inspectorate – the working time unit has no inspection powers.

The TUC also says that the parliament’s latest review amendments to the Directive have in effect also rolled back the European Court of Justice (ECJ) precedent in Landeshauptstadt Kiel v Norbert Jaeger (C-151/02), which established that on-call hours be counted as working time. This change might allow member states to attribute fewer on-call hours to working time. In the UK, this might mean junior doctors’ working time could be re-calculated, as the NHS currently follows Jaeger.

The Council of Ministers will consider the review amendments in June.

(18/05/05)

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Legislative annotations in other services:-
Working Time (Amendment) Regulations 2002

Case annotations in other services:-
Landeshauptstadt Kiel v Norbert Jaeger (C-151/02) [2004] All ER (EC) 604, [2003] 3 CMLR 493, [2004] ICR 1528, [2003] IRLR 804, 75 BMLR 201, Times, 26 September, [2003] All ER (D) 72 (Sep)