The political row over the Working Time Directive has rather overshadowed the detail of the provisions and their practical effect. The Directive has offered two extreme responses: it will wreck the UK economy (©UK Government 1996) or it is a toothless piece of Brussels nonsense (©UK Government 1993).
As the dust begins to settle, workers need to know the main provisions of the Directive (see 'THE MPROVISIONS', in table below) and its likely impact.
Who is protected?
The Directive applies to 'workers', not merely employees (Article 2). The Employment Rights Act 1996 definition of workers includes employees and anyone who works under a contract to provide services personally, except where the relationship is one of customer or client. The Directive, by applying to 'workers', means freelances and casual staff are covered.
Certain sectors of industry are excluded (see 'EXCLUDED SECTORS', in table below), notably transport workers and junior doctors (Article 1.3). Draft legislation is expected on transport workers soon.
European countries can pass laws to exclude other groups of workers like managing executives and family workers (see 'EXCLUDED SECTORS', in table below) from the main provisions. But these workers must remain entitled to the provisions on paid holiday, health and safety for night and shift working and the principle of adapting work to the worker (Article 17.1).
What is working time?
Any time when a person is working, at the employer's disposal and carrying out his activities or duties (Article 2). This may lead to controversy on travel to and from work locations, zero-hours contracts and 'on-call' arrangements. A rest period is any time which is not working time.
Minimum periods of rest and breaks
Workers are entitled to a minimum period of 11 consecutive hours rest in each 24 hour period (Article 3).
In every 7 day period, workers are entitled to a minimum uninterrupted rest of 35 hours, which may be reduced to 24 hours if objective, technical or work organisational conditions justify (Article 5). The rest period entitlement is averaged over a 14 day period, so providing 70 hours uninterrupted rest over two weeks would satisfy the Directive, even if there was less than 35 hours rest in one of those weeks (Article 16.1).
Where the working day is longer than 6 hours, every worker is entitled to a rest break. The details of this, including duration and terms on which the break is granted, must be laid down by 'collective agreements or agreements between the two sides of industry' (a phrase which recurs throughout the Directive). Only where collective agreements have not established these details should they be set by legislation (Article 4).
For the first time in the UK there will be a statutory right to paid leave (Article 7). The entitlement will be three weeks per year, but must increase to four weeks by November 1999 (Article 18(1)(b)(ii)). The leave cannot be replaced by payment in lieu, except as payment for leave which has accrued but has not been taken when employment ends.
With the exception of the general exclusion of transport workers, none of the other exceptions or modifications alters the right of all workers to three weeks paid annual leave.
The 48 hour week?
Most media comment has centred on maximum weekly working time. This is an average of 48 hours per 7 day period (Article 6). The average is calculated over 4 months (Article 16.2). Periods of sickness absence or paid annual leave are not included in calculating the average.
Periods used for averaging in the Directive are called 'reference periods'. The reference period for averaging weekly working time can be extended to six months by collective agreement or laws for the special categories (see 'SPECIAL CATEGORIES', in table below). It may even be extended to 12 months where there are objective or technical reasons concerned with the organisation of work (Article 18.4). But this can only be done by collective agreements or agreements between the two sides of industry, as in the pioneering agreement reached between MSF and the Heating and Ventilating Contractors' Association.
48 hours: the opt out
The much-vaunted opt out from the 48 hour requirement depends on a country introducing legislation to implement the Directive. If the UK took no action, the 48 hour provision would apply in full. This is probably a major factor in the Government's decision to introduce some form of legislation.
If the UK goes for the 'opt out', it will not be a soft option. The choice not to apply the 48 hour requirement at least until November 2003 carries with it obligations (Article 18.1(b)(1)).
The UK would have to ensure that individuals only work more than a 48 hour week (on average over a 4 month period) if they have agreed in advance with their employer.
No-one must be subjected to any detriment for refusing to agree. The employer must keep records of all those working more than 48 hours and make those records available to 'the competent authorities', who may take action to protect the health and safety of the workers concerned.
Hold back the night
There is special protection for night workers. A night worker is someone who usually works at least 3 hours of 'daily working time' (sic) at night. Night is defined as a period of at least 7 hours to be defined nationally, but which must include the hours of midnight to 5 am: so it could be 10pm to 5am, midnight to 7am, or any permutation in between (Article 2).
Normal hours of work for night workers must not exceed an average of 8 hours in any 24 hour period. If night work involves special hazards or heavy physical or mental strain it must not exceed more than 8 hours in any 24 hour period (Article 8).
The reference period for calculating the average must be set 'after consultation of the two sides of industry or by collective agreements or agreements between the two sides of industry at national or regional level' (Article 16.3). This aspect of implementation will prove interesting as, so far, there has been no consultation.
Night workers are entitled to free health assessments and, if they have health problems related to night work, are entitled to transfer to day work (Article 9). The work of certain categories of night workers may be made subject to specific protection or conditions if the workers face health and safety risks linked to night-time working (Article 10). Employers who regularly use night workers must notify 'the competent authorities' (Article 11).
Night and shift workers
Night and shift workers must have health and safety protection appropriate to the nature of their work. Health and safety facilities must be available to them at all times and must be equivalent to those available to the day shift (Article 12). Laws may modify the application of daily and weekly rest periods to shift workers to take account of changes of shift and activities where there is a long gap in the middle of the day, for example cleaners (Article 17.2.3).
Adapting work to the worker
Wide-ranging consequences may follow from the requirement that employers who organise work according to a certain pattern must take account of the general principle of adapting work to the worker (Article 13). This applies especially to alleviating monotonous work, or work at a pre-determined rate, for example work on a production line. The employer must pay particular attention to the need for breaks.
Flexibility: special categories
Article 17.2 of the Directive lists special categories (see 'SPECIAL CATEGORIES', in table below) where the application of parts of the Directive may be modified by national laws or collective agreements. Unless laws are passed or collective agreements reached, the full force of the Directive will apply to those special categories.
The provisions which can be excluded are those on daily and weekly rest breaks and duration of night work, plus the provisions on reference periods. This means no exclusion of the provisions on annual leave and the 48 hour week - although the reference period for averaging the 48 hours may be extended to 6 months (or in exceptional cases 12 months by agreement - see above).
Although the strict provisions of the Directive may be excluded, the workers concerned must be given equivalent periods of compensatory rest. Only in exceptional cases where that is not possible, for objective reasons, can the obligation to provide compensatory rest be replaced by an obligation to provide adequate protection.
The Government will have to legislate for these areas or leave it to collective agreements. The special categories provisions should not mean that every worker in those industries can have their protection modified: in those industries which involve the need for continuity of production or service, it should only be those who are engaged on activities necessary for that continuity who are affected.
Flexibility: all employments
The Government can only modify the application of the Directive for the special categories by law. Employers and workers in all industries have the power to modify the application of the Directive in similar respects by 'collective agreements or agreements between the two sides of industry'. These agreements may be at national or regional level or at a lower level within a national or regional framework (Article 17.3).
THE MAIN PROVISION
- 11 hours rest per 24 hours
- one period of 35 hours rest each week
- paid annual leave of 3 weeks (4 weeks by November 1999)
- rest break if work longer than 6 hours
- average working time over 4 months must not exceed a weekly 48 hours
- normal hours of work for night workers must not exceed average of 8
- free health assessments for night workers
- employers must adapt work to the worker.
These provisions are subject to possible modification by laws or collective agreements as discussed in this article.
From the whole Directive
- transport (air, sea, road, rail, inland waterways, lake)
- sea fishing
- doctors in training
Laws may exclude from most provisions
- duration of working time not measured or set in advance, particularly: managing executives; family workers; clergy
- workers who live a long way from the workplace
- workers who have workplaces a long way apart
- security guards, caretakers and surveillance
- where there is a foreseeable surge of activity, particularly agriculture, tourism, postal services
- activities requiring continuity of service or production, particularly:
- hospitals, residential institutions
- docks, airports
- press, radio, television, film
- post, telecommunications
- ambulance, fire, civil protection
- gas, water, electricity
- refuse collection and incineration
- industries where work cannot be interrupted on technical grounds
- research and development
The Directive had to be implemented by 23 November 1996. Although the UK Government may move quickly to implement, it did not meet the deadline. The UK can pass the necessary laws by Regulations which can be pushed through Parliament quickly and with limited debate. We shall comment on the implementing legislation in future issues of LELR. In this issue, we focus on the position in the interim, before the UK has passed its own laws.Immediate implications
The legal position differs as between public and private sector workers. Workers employed by state bodies like central government, local authorities, health trusts and the privatised water companies can enforce the Directive against their employers - it has 'direct effect'.
Private sector workers cannot use the Directive to sue their own employers. But if they suffer a loss because the Government has failed to implement a provision which grants individual rights which are sufficiently unconditional and precise, then they can bring a claim against the Government. This is based on the Francovich case  IRLR 84 where the ECJ established that governments could be obliged to pay compensation in those circumstances. This was reinforced by the recent case of Dillenkoffer (unreported, 8/10/96 ECJ) which said this applied where a Directive was implemented late and someone lost out in the intervening period.
Fear of legal action will drive the Government to legislation, as will the wish to utilise the provisions which modify how the Directive applies. There is the distinct possibility of individual claims immediately after 23 November. Perhaps the most obvious provision is the entitlement to paid annual leave. It is unconditional, precise and breached by many employers.
Legal cases are only part of the picture. The most important aspect of the Directive is its cooperative approach to working time which involves discussion and agreement between employers and unions ('the two sides of industry'). The details of breaks must be established through that route, and only failing that by consultation. Flexibility in operation of other provisions of the Directive can be achieved through the same route. This represents an opportunity for unions and employers to make strides towards practical implementation which protects workers whilst recognising the needs of the particular industry. These issues are unlikely to be best dealt with by legislation, the tone, content and timing of which will be aimed more at the General Election and the EU Inter-Governmental Conference.