This summer, the UK secured the continuing right for its workers to opt out from the 48-hour working time limit under the Working Time Regulations 1998 (the “Regulations”). The right of UK workers to opt out of the Regulations had been under threat since 2004.
Under the Regulations, UK workers cannot work more than an average of 48 hours in any 17-week period. Where a worker is required to work in excess of this limit, they can be asked to “opt out” of the 48 hour limit in writing, however they are not under any obligation to do so. It is unlawful to dismiss a worker or otherwise victimise them for refusing to opt out. At the present time, an “opt-out” agreement may last indefinitely, although a worker is entitled to cancel it by giving up to a maximum of three months’ notice.
In June 2008, the EU Employment Council reached agreement on a proposal for amendments to the Working Time Directive (from which the Regulations derive) under which UK workers retained the right to opt out. However, the proposals make any such opt-out subject to additional safeguards, including the imposition of a 60 hour cap on permitted average working time over a 3-month period, unless permitted in a collective agreement or agreement between social partners.
As regards the opt-out agreement itself, it is proposed that an opt-out will be void if signed at the same time as an employment contract, or within 4 weeks of starting work. Any opt-out agreement will not be able to last for more than a year without being renewed in writing. Within the first 6 months of employment, or up to 3 months after the end of any probationary period, workers will be able to opt back in to the Regulations with immediate effect.
The Employment Council’s other proposals include:
- The reference period (over which the average working time is to be calculated) may be extended from 17 weeks to 6 months for objective or technical reasons, or reasons concerning the organisation of work.
- On-call time will be categorised as "active" or "inactive". Active on-call time will be regarded as working time, whereas inactive on-call time is not regarded as working time or rest time unless considered so under national law, collective agreement or agreement between social partners. Working time including inactive on-call time cannot exceed 65 hours a week averaged over a 3-month period unless permitted in a collective agreement.
- Compensatory rest may be given after a “reasonable period” rather than immediately after a shift.
The position is slightly different for workers working for an employer for less than 10 weeks in a 12-month period. For these workers there will not be a 60 hour cap on working time, or a 65 hour cap on working and inactive on-call time so long as general health and safety principles are observed. Opt-out agreements will also not be void if signed within 4 weeks of starting work.
The agreement is now being reviewed by the European Parliament, and is expected to be adopted before Parliament rises in Spring 2009. It is anticipated that UK regulations will be implemented in April or October 2010, at which point employers will need to review any existing opt-out agreements, particularly if incorporated into contracts of employment, as these will then become void.
