48-hour week opt-out to remain

An agreement within the EU Employment Council will allow the UK to continue permitting employees to opt out of the 48-hour maximum average working week. Under the agreement reached, the basic cap on the working week will remain at 48 hours, but workers will be allowed to work more than this maximum if they choose to opt out. 

In order to be allowed to work more than an average of 48 hours per week, workers will continue to have to sign an opt-out. However, a number of new safeguards will apply (these were insisted upon in the light of a survey that found a third of all British employees had signed such 'opt-out' forms):

• employees will not be eligible to opt out during their first month of employment;
• they may not be penalised for declining to do so, or for withdrawing from a previous waiver agreement;
• employers must keep records of the working hours of opted-out workers.

There is a new protective limit for workers who opt out of 60 hours per week. This cap will apply to all workers employed for longer than 10 weeks with one employer. 

The compromise on the opt-out may well lead to protests by European trade unions, who had wanted to see its end. In order to become European law, the agreement reached by the Council stills needs to be approved by the European Parliament. MEPs will consider the issue later this year. They may well not endorse the agreement as in May 2005, they overwhelmingly voted to get rid of the opt-out by 2012.

One further proposed change to the Working Time Directive relates to the way in which time spent “on-call” is treated. This will have significant implications in particular for the health sector, for on-call staff such as doctors. Previous judgments of the European Court of Justice have held that:

• time spent by a worker at the workplace whilst on call is working time, whether or not work is being done;
• time spent by a worker attending actual calls is obviously working time;
• time on call will not be considered to be working time if, during the relevant period:
  • the worker does not have to be at the workplace, and
  • no work is in fact done.

Under the revised Directive, on-call time would be divided into active and inactive on-call time. Active on-call time would be counted as working time. With regard to inactive on-call time, this cannot qualify as a rest period but Member States can choose whether such periods will be counted as working time. There will be a new cap of 65 hours per week for workers who opt-out of the 48-hour working week but where inactive on-call time is counted as working time.

For more information on the 48-hour week and the opt-out, see the Q&A in this month’s Employment Brief.

Read the other articles in this newsletter:

"Self-employed" workers can claim unfair dismissal
Consultation regarding new right to request training
Keeping a written record does not amount to a detriment
Q and A  - The 48-hour week
STOP PRESS - New Equality Bill


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