During November 2006, employers and trade unions in the UK differed sharply in their responses to the failure of the Employment, Social Policy, Health and Consumer Affairs Council to agree on changes to the working time Directive. The Confederation of British Industry welcomed the retention of the current scope for individuals to opt out of the 48-hour maximum working week. However, the Trades Union Congress was critical of the outcome of the council’s meeting, regarding it as a missed opportunity to strengthen the protection available to employees working long hours.
On 7 November 2006, the EU Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) held an extraordinary meeting to discuss the amendment of Directive 2003/88/EC concerning certain aspects of the organisation of working time (UK0506104F). The Finnish EU presidency hoped to achieve political agreement on changes to the directive, including:
- placing tighter conditions on the scope for individual employees to opt out of the 48-hour maximum average working week;
- amending the treatment of time spent ‘on-call’ by health professionals and other workers in light of recent European Court of Justice (ECJ) case law.
Until the enlargement of the EU in May 2004, the UK was the only EU Member State to permit an individual opt-out on a general basis, although other countries have made use of this option for certain groups of workers, notably in the healthcare sector.
Outcome of council meeting
A number of countries, including France, Spain and Italy, have reportedly insisted on abolishing the provision allowing individual opt-outs, but the UK’s Secretary of State for Trade and Industry, Alistair Darling, entered the council meeting ‘determined’ to maintain the opt-out. The Finnish presidency had proposed a compromise whereby the opt-out would be retained subject to an absolute maximum of 60 hours per working week. However, it was not possible to achieve a qualified majority for any of the options tabled, so for the time being the existing provisions of the working time Directive will remain unchanged.
Social partner reactions
Commenting on the EPSCO’s failure to agree changes to the directive, Deputy Director-General of the Confederation of British Industry (CBI), John Cridland, stated: ‘The [UK] government deserves credit for standing firm and delivering on its pledge to maintain the opt-out. But this issue will come back to the table and, when it does, the government needs to continue to hold its nerve.’ The CBI regards the ability of individuals to opt out of the 48-hour limit on weekly working hours as vital to labour market flexibility and competitiveness in the UK. According to the CBI, ‘those who have argued for the ending of the opt-out simply do not understand the realities of the modern workplace’.
Other UK employer organisations, including the Institute of Directors (IoD), the manufacturer’s organisation EEF and the Federation of Small Businesses (FSB), had also urged the UK government to resist the abandonment or watering down of the opt-out provision.
However, the Trades Union Congress (TUC) was critical of the outcome of the talks. According to TUC General Secretary, Brendan Barber, ‘this was a missed opportunity to ensure that UK workers are properly protected against the dangers of overwork. The trend in the UK is now towards a slow decline in long-hours working. New legal rights would have speeded up that process without hitting economic success.’ However, he insisted that ‘the government is not off the hook. It is clear that there is widespread ignorance of working time rights, extensive employer abuse of the opt-out and precious little enforcement of working time rules. The TUC will step up its campaign to bring the UK into line with existing EU law.’
Likely impact of ending opt-out
Prior to the EPSCO meeting, the TUC published a new analysis report of official figures (265Kb MS Word doc) showing that working long hours is on the decline across the UK economy. The TUC argues that ending the opt-out would have ‘little economic impact’ for several reasons, namely that:
- a third of UK employees who work more than 48 hours per week are only working one or two extra hours per week;
- up to one million UK workers would continue to be exempt from the weekly 48-hour limit, mostly because of the ‘autonomous workers’ exclusion;
- accompanying changes discussed at EU level include increasing the period for averaging the 48-hour limit from 17 to 52 weeks, which would exclude about 1.5 million UK workers who do not work long hours on a sustained basis.
Mark Hall, IRRU, University of Warwick