48 Hour Opt-Out here to stay - May 09
A version of this article appeared in Workplace Law on 1 June 09
The ability to opt out from the 48 hour maximum working week under the Working Time Directive has been the subject of furious debate across the European Union.
The European Parliament has been pushing for the abolishment of the right to opt out, so that the absolute limit of 48 hour working weeks would apply across the whole of Europe, including the UK. This was contrary to the proposals of the European Council, that had voted for retention of the opt-out but with increased controls and restrictions over its use.
The final round of conciliation took place last week and has failed to reach agreement.
For the time being this means that the opt-out is here to stay. In the UK this means that all employees can still be asked to “opt out” and so work more than 48 hours a week, but continue to have the right to reject this request or change their mind on no more than 3 months’ written notice, without suffering any adverse treatment as a result.
This will generally be viewed as a good result as the opt-out is widely used across the UK. The current economic climate means that the UK Government has been keen not to add to the burden on employers, or limit employee’s ability to choose to work extra hours to earn more money.
However the failure of the conciliation process also means that the proposals to give employees extra protection to prevent the opt-out from being exploited by unscrupulous employers, have also fallen by the wayside. These included suggestions of a maximum cap of 65 hours in total per week and a bar on using opt-outs within contracts or during probationary periods.
Although the opt-out has been central to the discussions, another issue which fell within the scope of the proposals was the definition of “on call” time, and when employees should be treated as being at work. The Working Time Regulations as currently drafted have caused real difficulties for sectors which rely on “on call” workers such as hospitals, the care industry and boarding schools. Unfortunately these difficulties now remain unresolved and no doubt we will see more case law as a result.
This long running debate looks to have reached a conclusion for now, although the opt-out has caused such strength of feeling that no doubt we may see it resurrected in the future.
For further guidance on any of these matters please contact a member of Rickerbys' employment team.
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