On Dec. 1, 2014, the European Commission launched an online public consultation on the review of the Working Time Directive. Citizens, organizations and public authorities have until March 15 to submit their views. An earlier attempt to negotiate changes to the directive failed in 2011 after talks between bodies representing unions and businesses became blocked.

The organization and regulation of working time in the public and private sector has considerable social, economic and political impact. At EU level, Directive 2003/88/EC (the Working Time Directive) aims to provide minimum standards common to all EU countries to protect workers from health and safety risks associated with excessive or inappropriate working hours, and with inadequate time for rest and recovery from work. The commission is reviewing the directive to reflect on how to best meet the needs of workers, businesses, public services and consumers. The preparatory work involves a thorough impact assessment of a range of possible options for the review, while the public consultation, via a questionnaire, aims at contributing to the current review and impact assessment.

Current state. The directive establishes common minimum requirements for all member states, including:

  • daily and weekly rest breaks for workers (normally, 11 consecutive hours’ daily rest and 24 to 35 hours’ uninterrupted weekly rest)
  • a rest break during working time (where the working day is longer than six hours)
  • limits to weekly working time for workers (48 hours a week on average, including overtime)
  • paid annual leave for workers (at least four weeks per year)

It also provides extra protection for night workers:

  • normal hours of work must not exceed eight hours (average) per 24-hour period;
    • work must not exceed eight hours in any 24-hour period, if it involves special hazards or heavy physical or mental strain;
  • right of all night workers to a free health assessment before assignment, and at regular intervals afterward;
  • right to a transfer to day work “whenever possible,” if suffering from health problems connected to the night work; and
  • measures to require employers that regularly use night work to notify the responsible authorities of health-related transfer requests.

The review. The questionnaire asks for views on a range of issues on themes such as scope, concept of working time, derogations, sectors / activities and patterns of work.

Scope. The questionnaire asks whether the directive, or legislation introduced by member states should stipulate whether the working time rules apply to a single worker, regardless of how many contracts they are working under, or to each single contract. Currently, the directive requires an employer to count all the hours a worker works through all contacts/employers in calculating the 48-hour weekly working limit, rather than only the hours he or she works pursuant to a contract or contracts for the employer. The consultation asks whether respondents consider the directive should make this clear.

Concept of working time. The commission asks whether there should be a change to the current directive in light of European Court of Justice cases on the treatment of on-call time and stand-by time (in particular, C-303/98 Simap, C-151/02 Jaeger, C-14/04 Dellas). These cases concluded that time spent on call by doctors in primary healthcare teams must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104, if they are required to be at the health center. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary healthcare services must be regarded as working time. The European Court of Justice also concluded in the Jaeger case that where rest breaks were delayed due to emergencies or other unavoidable circumstances, that equivalent compensatory rest must be given immediately after serving the prolonged hours. This can have consequences for organizations in terms of workforce planning, so there may need to be some flexibility built into the law.

Opt-out. Of particular significance for the UK, the consultation asks for views on the current ability for member states to allow workers to opt out of the limit on weekly working hours. The questionnaire provides four options for respondents: maintain the right of opt-out unchanged; impose stricter conditions on the application of the opt-out; allow the opt-out but not in conjunction with other derogations; or abolish the right of opt-out in favor of other derogations for employers, such as allowing them not to record on-call time fully as working time.

The UK’s enactment of the right for workers to opt out of the 48-hour weekly working limit has long been a source of contention between the unions led by the Trades Union Congress (TUC) and the British government. TUC has campaigned in the UK and at European level for its removal; the British government has cited research by Open Europe, a Eurosceptic think tank, which claimed removal of the opt out would prevent 3.2 million people from working more than 48 hours a week, costing the economy £12 billion at a time when the government needs to cut costs to ensure growth.

It has been nearly 20 years since the Working Time Directive was first enacted. By conducting this review, the European Commission recognizes working patterns and the organization of work have changed considerably over that period. Consequently, it is seeking input as to whether the directive should introduce specific rules for different types of contracts, such as zero-hour and flexi-time contracts, as well as performance-based contracts. The commission also seeks feedback on whether the directive should support better reconciliation of work and private life by introducing specific rights for individuals to request specific working arrangements depending on their personal circumstances, and to have such request duly considered. It gives the examples of requesting flexi-time or teleworking or of taking daily rest in blocks of time rather than uninterrupted periods, to allow an individual to leave early and then continue working later from home.

It would seem this consultation may be opening the way for the directive to go further than its original intention, which was to lay down minimum health and safety requirements. Any changes will need to be approved by the European member states in Parliament and Council, so it may be some time before there are any amendments to the directive. Those wishing to provide feedback have until March 15, 2015.