Working Time - calling time on opting out?

27 May 2004

The Working Time Directive (implemented as the Working Time Regulations 1998 in the UK) includes the provision of an opt-out, under which an individual worker may waive the right to limit his or her average working week to 48 hours. Whilst recognising that the opt-out helps businesses to be flexible and competitive, the European Commission is also concerned to protect workers' health and safety, and wishes to tackle abuses of the opt-out provision. Abuses typically happen when a worker has no choice but to sign an opt-out as part of, for example, an employment contract. Employers in the UK are perceived as particular offenders.

The Commission is pressing European trade unions and employers' representatives (known as the social partners), currently taking opposing positions, to negotiate a solution to this issue. If they fail to do so, the Commission envisages the following options:

• controlling opting-out more closely, for example by imposing a time-lag between signing an employment contract and an opt-out provision. This is to ensure that opting-out is truly voluntary and not abused in practice. Employers would also have to review employees' consents regularly
• permitting exemptions from the maximum weekly working time only through collective agreements
• imposing an obligation on employers to permit opt-outs through collective agreements only, and not individually
• phasing-out the opt-out provision completely, so that workers work on average a maximum 48-hour week

This last option is the most alarming, and will have the greatest impact on employers. Whilst we think that it is unlikely that the opt-out will disappear altogether, it looks inevitable that it will become more tightly controlled.

It is worth noting that the 48-hour average working week provision does not apply to workers who can control their own working time such as 'managing directors or other persons with autonomous decision-taking powers', so senior members of staff may not be affected by any changes to the opt-out.