UK Opt-Out To Remain In Place

The European Parliament and Council have failed to reach agreement on three crucial elements in the revised Working Time Directive, including the removal over time of the right to opt out from the 48-hour weekly working limit where an individual employee gives his or her prior agreement to waive this right. Since there is no agreement, the current Working Time Directive remains in force.

The Employment Relations Minister welcomed the decision. He said, “Everyone has the right to basic protections surrounding the hours they work, but it is also important that they have the right to choose those hours.

“In the UK and many other Member States, choice over working hours has operated successfully for many years. The current economic climate makes it more important than ever that people continue to have the right to put more money in their pockets by working longer hours if they choose to do so.”

However, TUC General Secretary Brendan Barber expressed his disappointment at the breakdown of talks. He said, “We are disappointed that another opportunity has been missed to end the UK’s dangerous long hours culture,” and warned that “the UK Government still needs to tighten the law on working time, otherwise the EU could take it to court in order to protect UK workers from abuse of the 48-hour week.”

The other sticking points in the negotiations were ‘on-call’ time and multiple contracts. Rulings by the European Court of Justice (ECJ) have supported the position that on-call time should be regarded as working time. This position was defended by the European Parliament, in its vote on 17 December 2008. Whilst broadly supporting this, the Commission had proposed a distinction between ‘active’ on-call time, during which the worker is required to be at work in order to work if required by his employer, and ‘inactive’ on-call time, during which a worker is on call but can, for example, spend the time at home when they are not performing duties. Members of the European Parliament (MEPs) were of the view that the proposed amendments to the Directive on this issue went backwards in comparison with ECJ rulings.

In addition, no substantive agreement on the issue of multiple contracts could be reached either. For workers covered by more than one employment contract, MEPs considered that working time should be calculated per worker and not per contract.

Employers are reminded that workers who opt to work more than an average of 48 hours a week over a 17 week period must sign individual opt-out agreements and a worker who does not wish to opt out must not suffer any penalty as a result. Furthermore, employers must keep records of staff who work more than the weekly limit and make these available to the appropriate authorities if required.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , July 2009

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