UK “OPTS OUT” OF ENFORCED

48 HOUR WEEK

 

Edition 132 of Enterprise Express (8th May 2009) reported that recent talks on the EU Working Time Directive had broken down without agreement being reached.  This article explores the background to those talks, and takes this opportunity to remind FSB members of the current law on Working Time, which covers holidays, breaks, night work in addition to weekly working hours.

  

 

 

 The European Working Time Directive compelled EU Member States to make national laws so that workers could not be required to work in excess of a 48 hour week.   The national law that was brought in to implement the Directive was the Working Time Regulations 1998.

 

A brief summary of the Regulations is as follows:

 

  1. They apply to “workers”, not just employees. “workers” can often cover certain types of sub-contractors and agency workers in addition to employees (this can be a grey area and you should seek specialist advice from an employment law specialist).

 

  1. 48 hours is the limit that workers can be required to work in a week

 

 

  1. Night Work – a maximum of 8 hrs work in any 24 on average, and a right to free health assessments for night workers

 

  1. At least 11 hours rest per day, at least 1 day off each week, a rest break if the working day is longer than 6 hours.

 

 

  1. At least 4 weeks paid leave per year (under the Regs) – this has now increased to 28 days.

 

Different rules and exemptions can apply to shift workers.

 

With reference to (2) above, 48 hours is the maximum that workers can be required to work. This does not prevent them from agreeing to work longer hours if they choose to, and this is where the Working Time “opt out” clauses or agreements come in.

 

As the law stands, an employer and worker can voluntarily agree to opt out of the 48 hour maximum week.  However, the opt-out cannot be forced on the employee, it has to be genuinely consented to, and it is unlawful to subject a worker to any detriment e.g. dismissal, if he refuses to agree.

 

Out of all the member states the UK is the state that uses the opt-out the most, and the UK’s position is at odds with the general feeling within the EU that the opt-out should be abolished.  Some trade unions have argued for its removal and MEPs voted in favour of its removal in December 2008.  However, the UK objected, and the British government confirmed in January 2009 that it wanted to retain the opt out. This led to the recent conciliation meeting in Brussels between the Member States, the European Parliament and the European Commission. The British Government maintained its objection to the removal of the opt-out, and the talks broke down without any agreement being reached.

 

It looks as though the UK is going to have to battle long and hard to keep the right for workers to choose the hours they work, and that the days of the opt-out could be numbered, but in the meantime, opt-outs are still valid, so if you or your employees would like to make the most of the opt-out while you can, you should make sure of the following: 

 

  • It is in writing

  • It is revocable, not permanent

  • It must be made by the individual concerned, not collectively

  • It can be included in the normal contract of employment, there is no need for it to be in a separate agreement (although employees that do not wish to sign it cannot be forced to do so, it must be freely given)

 

It is difficult to say whether in recession there will be increased or reduced demand for the use of opt-out clauses.  If the amount of work in general has diminished, it may be that there is far less opportunity to work long hours for those that wish to do so.  On the other hand, more businesses are trying to get more work out of fewer employees, and those that have survived redundancies may well be keen to get as much work as they can while it is still available.  At least for the moment the choice remains, but if businesses want to take advantage of the continuation of the opt-out, they should make sure the agreement is valid as set out above, and should ensure that they do not unfairly treat employees who do not wish to opt-out.

 

Sarah Coates-Madden

Sandersons

 

Sarah is a solicitor with expertise in employment law, commercial disputes, debt recovery and landlord and tenant law.

 

scoatesmadden@sandersonssolicitors.co.uk

 

 

Tel:       01482 324662

Fax:      01482 223110

e-mail:  enquiries@sandersonssolicitors.co.uk

 

 Source: Federation of Small Businesses, May 2009