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The Law in More Detail

Working Time Directive and the "opt out" provisions

During the summer ministers at the EU Employment, Social Policy, Health and Consumer Affairs Council finally agreed in principle to amendments to the working time directive. Negotiations have been long and fraught, and a worker's right to opt out of the 48-hour week was one of the most contentious issues. The council's decision brings UK employers a step closer to retaining their ability to ask workers to opt out of the 48-hour limit. But the agreed amendments still have to be endorsed later this year by the European Parliament, which has previously been critical of the UK opt-out.
Even if the European Parliament endorses the amendments, the European Commission will be required to review the use of the opt-out within seven years of any new directive coming into force. So a revised directive is unlikely to bring an end to the debate in the long term.

The 48-hour week is a key feature of the working time directive. Workers cannot work in excess of 48 hours a week on average (over 17 working weeks unless agrees otherwise), including overtime. But the directive, implemented in the UK by the Working Time Regulations 1998, does give member states the option of allowing employees to opt out of this weekly limit. Workers cannot opt out of any of the other provisions such as breaks or holiday rights.

The UK has made extensive use of the opt-out. Some countries, including Spain and Belgium, have argued that it negates the directive's health and safety objectives. The opt-out has also been heavily criticised by trade unions, and there is evidence of abuse by Employers (including the opt out as part of the employment contract in an offer letter for example).

Even so, the EU has recently agreed that the opt-out could stay, although this concession has come at the price of tighter regulation surrounding the use of opt-outs ( and evidence of a compromise deal on the rights of Agency workers too!). For example, it will be more difficult to obtain a worker's agreement to opt out. At the moment, workers can opt out at any stage of the working relationship and employers need only to obtain their agreement in writing. Many employers simply include a provision in their employment contracts to this effect. The European Commission has argued this is not legitimate and EU ministers propose that workers will not be able to opt out prior to starting work, or in the first four weeks of their employment unless the contract is for 10 weeks or less. Workers will also have to renew their agreement to opt out on an annual basis.

At the moment, workers need to give between seven days' and three months' notice to withdraw from an opt-out, although in practice most employers demand the full three months' notice. Current proposals mean workers will be able to cancel their opt-out without giving notice during the first six months of employment, their probationary period, or the three months following the end of their probationary period, whichever is longer. Even outside this protected period, the maximum notice required of a worker will be reduced from three to two months.

Employers will also need to keep more detailed records. At the moment, they only have to record the names of workers who have opted out. The ministers' proposals require employers to record the hours of all workers who have opted out. This will create practical difficulties for employers. They may have to consider introducing timesheets or time recording software to ensure compliance, even though this may provoke negative reactions.

Even those who do opt out will be subject to a maximum weekly working time of 60 hours in most cases or 65 hours where inactive on-call time is counted as working time. Previous ECJ judgments suggested that time spent at the workplace on call should constitute working time, whether or not work was actually done. (A doctor sleeping whilst on call but at the hospital is inactive time for example)

There is now to be a distinction between active and inactive on-call time (where a worker is at the workplace but not working). Under the proposed amendment, inactive on-call time (ie whilst actually resting) will not count as working time unless national law or collective agreements stipulate that it is.

Given its track record, the UK is unlikely to want inactive on-call time to count towards working time.

Working Time Directive - Main proposals

• Active on-call time is working time.
• In-active on-call time cannot be considered as rest time. It will be for national law/social partners to decide whether or not in-active on-call time will be considered working time.
• The 48-hour limit remains unless a worker opts-out.
• Workers who opt-out will have their weekly hours capped at 60 hours unless social partners agree otherwise.
• Where in-active on-call time is considered working time the cap rises to 65 hours.
• All workers with over 10 weeks' employment with one employer are protected.
• Workers cannot be required to opt-out at the time the contract is signed or during the first month of employment.
• Workers should suffer no victimisation for refusing to opt-out or withdrawing an opt-out.
• Employers will be obliged to keep records of the working hours of opted-out workers.

The proposals must now go to the European Parliament where they may be passed by majority voting rather than unanimous agreement of all 27 Member States. Based on the European timescales this suggests that UK regulations will be in place no earlier than April 2010.