"Modest proposals" for a revised Working Time Directive
Author: Darren Newman
Consultant editor Darren Newman explains why any "deal" for the UK on working time may be more political rhetoric than substance, and may be out of the hands of the politicians in any event.
There is no escaping the fact that, for Conservative politicians in the UK, the Working Time Directive (now 2003/88/EC) has an almost totemic significance. It is no surprise then that reports suggest that a key concession being sought by the Prime Minister, David Cameron, in his negotiations with the German Chancellor, Angela Merkel, over possible amendments to the EU Treaty is that there will be a relaxation of the application of the Working Time Directive in the UK.
To understand fully the significance that the Directive holds for politicians of a certain persuasion, it is necessary to look into its history. The Directive was adopted under the health and safety provisions of the Treaty, allowing it to be passed by qualified majority voting. Those provisions had been introduced into the Treaty by the Single European Act, which Margaret Thatcher had agreed to in 1986. The UK Government was outraged that what it regarded as a social protection measure was being adopted under the guise of health and safety, and challenged the validity of the Directive in the European Court of Justice (ECJ) (United Kingdom of Great Britain and Northern Ireland v Council of the European Union Case C-84/94 ECJ). The claim was unsuccessful and the UK Government was left facing the prospect of implementing a Directive that simply did not fit with its view of employment law. The deadline for implementing the Directive was 23 November 1996, but by the time of the general election in May 1997 it had still not been implemented in the UK. The Conservative Party manifesto committed any newly elected Conservative Government to insisting on being exempted from the Directive altogether.
The very existence of the Working Time Regulations 1998 (SI 1998/1833), brought in by Tony Blair's Labour Government, is, therefore, a continuing source of frustration and resentment for a whole generation of Conservative politicians.
So strong are these feelings that the actual impact of the Regulations is often overlooked. The fact is that most of the detailed requirements of the Regulations have had little, if any, impact. Employers that genuinely need their employees to work more than 48 hours a week would appear to have little difficulty in persuading them to sign the appropriate opt-out agreement. Prosecutions for breach of this rule are almost unheard of. Further, the requirements for regular rest breaks and some limitations on night work do not seem to have caused any particular practical difficulties. Nevertheless, if one were to look at the employment tribunal statistics, it would appear that the Regulations are a major headache for UK employers. The number of claims made under the Regulations has shot up in recent years - peaking at more than 114,000 claims in 2010/11.
However, the statistics are not all they seem. The overwhelming majority of those cases relate to a single issue: whether or not the holiday pay of pilots should include the flying-time supplements that they receive when they are working. The difficulty arises because the Civil Aviation (Working Time) Regulations 2004 (SI 2004/756) - unlike the Working Time Regulations 1998 - do not expressly incorporate the definition of a week's pay found in the Employment Rights Act 1996. If you find this a rather dull and technical issue, then join the club. However, pending the resolution of the test case of Williams and others v British Airways plc, thousands of pilots have been submitting regular claims for shortfalls in their holiday pay. These claims have all been categorised as working time claims, giving the impression that working time is the most hotly contested employment law subject around.
The pilots' issue has now been decided by the ECJ, and will return to the Supreme Court. We can, therefore, confidently expect that the number of working time cases brought before employment tribunals will start to fall dramatically.
Whatever its practical impact, however, securing a relaxation of the application of the Working Time Directive would undoubtedly play very well politically for the Prime Minister among his own supporters. The question is how this is to be done, given that Merkel is simply not in a position to agree a relaxation of the Directive.
This is because the wheels are already in motion. On 15 November, the European social partners (representatives of unions and employers at a European level) announced that they were prepared to enter into negotiations on revising the Working Time Directive (on the Europa website), following the consultation issued by the Commission in December last year (on the Europa website). This is a uniquely European way of legislating: if the social partners do reach an agreement, the text of that agreement can simply be adopted as a Directive without the need for approval from the European Parliament (under art.155 of the Treaty).
The process is an autonomous one, which means that politicians have to stay out of it while the parties negotiate. The social partners now have nine months to try to agree a Directive and the Commission has made it clear that, in the meantime, it will not be putting forward a legislative proposal of its own.
If negotiations fail, the Commission may seek to come up with a new Directive by the traditional legislative route involving the European Parliament. However, that has been tried before. The last attempt at a revised Directive resulted in deadlock between the Commission and the European Parliament, with the result that the whole project had to be abandoned in April 2009.
This may explain why the "relaxation" being suggested is so modest. The Guardian reports that what Cameron has secured from Merkel is an assurance that the UK opt-out will remain, as well as the redefinition of "on-call" time to take account of workers who stay at their workplace overnight but who are provided with appropriate sleeping or other accommodation.
These are singularly modest proposals. In the first place, it is absolutely inconceivable that any UK Government - of whatever political persuasion - would agree to a measure that resulted in the abolition of the opt-out from the maximum working week. The political consequences of such a move would simply be too great. Luckily, such an outcome is highly unlikely. The opt-out is not for the UK alone, as 16 member states rely on it to some extent. In the smaller Europe of 1998, the UK may have been isolated on this issue, but this is no longer true. Agreeing that the opt-out will stay, therefore, is doing no more than stating the politically obvious.
As for the on-call time point, this is an issue on which many EU member states will agree. The decisions of the ECJ in Sindicato de Médicos de Asistencia Pública (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] IRLR 845 ECJ and Landeshauptstadt Kiel v Jaeger [2003] IRLR 804 ECJ have been much criticised and reform of this area was one of the issues highlighted by the Commission's latest consultation. It is highly likely that any agreed change to the Directive would, in any event, lead to some relaxation of the way in which on-call time is treated.
On balance then, the reports about a "deal" on working time seem to be more about political rhetoric and positioning than substance. Important changes may well come in relation to working time, but they are more likely to be the result of talks between unions and employers than talks between politicians.
