European Commission proposes changes to the Working Time Directive, including restrictions on opt-out and on-call time
On 22nd September the European Commission issued a proposal to update key aspects of the Working Time Directive. It is intended to be a balanced package of measures which retain the principal objective - safety of workers- while responding to the needs of a modern European economy.
Of particular interest to businesses in the UK are the proposed restrictions to the opt- out from the 48 hour working week limit. Although the UK will still be able to apply the opt-out there will be further restrictions on its use. In particular:
1. For businesses where there are recognised unions and collective agreements in place the opt-out must be expressly covered in those agreements.
2. Individual consent will always be required from every worker and such consent will only last for a year, after which it can be renewed.
3. Effective consent cannot be obtained via a term of the employment contract. This means consent to the opt- out must be obtained expressly and separately.
4. Consent will not be valid if it is given during any probationary period. This suggests that consent will only be valid if it is given at the end of the probationary period after permanent employment has been confirmed.
5. No worker can work more that 65 hours in any one week, unless there is a collective agreement which provides for longer.
The proposals also cover record keeping and would give the Health and Safety Executive (as a UK "competent authority") greater rights to request information and to limit the maximum weekly working week. One key relaxation, however, is that Member States will be given the option to set a reference period of up to twelve months, rather than the current four month period (which is used in the UK).
The other key proposals aim to clarify "on-call" time. A new category of "on-call" time has been created. This is "inactive on-call time" and covers the period during which the worker is on-call but not required by his employer to carry out his activity or duties. Inactive on-call time is not to be regarded as working time unless national law decides otherwise.
The proposal will now be sent to the European Parliament and Council for agreement and so will not come into force in the UK for some time. However the changes will affect employment practices and procedures, particularly in obtaining valid consent, when UK law is amended.
If you require further information about how working time affects your business please contact Simon Jeffreys at simon.jeffreys@cms-cmck.comor on +44 (0)20 7367 3421 or Anthony Fincham at anthony.fincham@cms-cmck.comor on +44 (0)20 7367 2783 or Alex Green at @cms-cmck.com alex.green@cms-cmck.comor on +44 (0)1224 621764
