British working hours are long and getting longer, according to Government statistics published earlier this year. A survey published jointly by the Department for Trade and Industry and Management Today magazine found that 1 in 6 workers now work over 60 hours a week compared to just 1 in 8 in 2000.

“But wait” I hear our savvy HR readership cry, “aren’t employees only supposed to work 48 hours per week?” Sort of, is the answer. The majority of the workers doing these long hours are likely to be “opted-out” of the relevant protections under the Working Time Regulations 1998. New proposals indicate that use of the opt-out is set to alter radically in line with changes to the underlying European Law.

Both the UK Government and the European Commission believe that many employers commonly and systematically require all employees to opt out (regardless of their actual working hours) by including it in contracts of employment or presenting it for signature when employees first arrive for work.

Their belief is borne out by the research recently conducted by IRS, who surveyed 77 organisations covering 196 employee groups (“Overcoming the Time Difference”, Sue Milsome, IRS Emp. Law 2004, 806, 8). Out of the 37 respondents who used the opt-out, the overwhelming majority asked employees to opt-out at the same time as accepting the job offer. While this approach has the obvious advantages of convenience and administrative ease for employers, the counter-argument is that it renders farcical the idea of freely given employee consent, whatever the theoretical statutory protections.

The European Commission openly disapproves of what it sees as clear abuse by the UK of the opt-out. It comments in a document published last month “The Commission review identified problems with certain aspects of the [Working Time] Directive. It found some evidence that the opt-out was being misapplied in the UK, the only member state which had applied the opt-out generally from the beginning.” Brussels calculates that about a third of UK workers are opted-out and is promising changes to European law to combat the perceived abuse.

Inevitably, opinions on the use of the opt-out are starkly divided along obvious political divisions: the European TUC maintains that the only acceptable option is a complete retraction of the opt-out while the CBI warns that the opt-out is the cornerstone of a flexible labour market. Interested parties have lobbied hard to influence the proposed Directive, in the warm-up stages of what’s promising to be a bitter campaign to drive the working time legislation in one direction or another.

Pre-empting action by the European Commission, the Government published this year a preliminary consultation which invited comments on a variety of ideas to restrict use of the opt-out. The Government’s proposals can be seen at http://www.dti.gov.uk/er/work_time_regs/index.htm

Consultation on the Government’s proposals closed on 22 September. On the very same day, the European Commission announced its own proposals for amendments to the Directive which underpins the Regulations. The UK Government’s suggested changes had foreshadowed many of Europe’s proposed measures, such as:

• A requirement that the worker’s consent to the opt-out is renewed annually (at least);

• A prohibition on opting out at the time of signing the contract of employment or during any probationary period;

• A cap of 65 hours per week on opted-out weekly working hours (unless collectively agreed);

• Enhanced record-keeping and monitoring requirements.

However, on the crucial issue of the application of the opt-out, the proposed Directive provides that the ability to opt-out will be retained BUT its operation must be approved not just by the individual worker BUT ALSO by a collective agreement or an agreement between the social partners at the appropriate level. Only where no collective agreement is in force and there is no collective representation within the business that is empowered to conclude a collective agreement, will an individual worker’s consent be sufficient by itself.

This proposal has pleased neither employers nor unions. Indeed, there appears to be some confusion about its effect, as howls of anguish have harked from both ends of the political spectrum, each of whom believe that the proposed Directive is a victory for the other. The CBI and the EEF (a manufacturers’ organisation) claim that the threatened union veto over the opt-out has been retained and the CBI has promised to fight this revision “tooth and nail”. However, warnings from the socialist camp threaten a Parliamentary challenge to the proposals on the basis that they undermine the original Directive, which aimed to balance work and family life.

The response of the interested parties suggests that the proposed Directive offers not so much a balance between competing interests as a half-hearted compromise to each side of the debate. Moreover it shows that the effect of the proposal is far from clear.

Some employers reading this will believe that they are unaffected by the debate on collective versus individual consent to the opt-out, because they don’t have organised employee representation. Think again. The Information and Consultation of Employees Regulations (the “Consultation Regulations”) will take effect from April next year and are set to revolutionise workplace bargaining. For more information on this legislation see “Update on National Works Councils” – hrlaw 18 October 2004. In conjunction with existing mechanisms for compulsory trade union recognition, the Consultation Regulations are likely to mean that workplace bargaining will become increasingly collectivised over coming years. This will not be a voluntary phenomenon. Employers who routinely use the opt-out or whose business model relies on long working hours need to start making contingency plans now. It is clear that use of the opt-out WILL be curtailed to some extent: it is only the scope of that restriction which remains in doubt.

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