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Farrer & Co | What has the Working Time Directive ever done for us? The first employment-related Brexit battleground

Earlier in December, a number of Sunday papers reported that there is widespread cabinet support for removing the rules derived from the Working Time Directive. In this piece, I will assess the impact of removing the existing working time rules, whether it is credible to describe such a proposal as a benefit to workers (as the Sun on Sunday reported) and what the proposal might tell us about the future of UK employment regulation post-Brexit

The UK's Working Time Regulations 1998 were introduced to implement the EU Working Time Directive (adopted in November 1993) and part of the EU Young Workers Directive, which lay down minimum conditions in relation to weekly working time, rest entitlements, night working and annual leave. For the sake of ease in this article, I will refer simply to the "working time rules" when not considering specifically the UK regulations or the EU directives.

Shackles come off?

Under the headline "Shackles Come Off", the Sun on Sunday suggested that removing the working time rules would lead to a "post-Brexit overtime boom" for workers. The paper asserted that the 48 hour limit to the working week costs the average UK family £1,200 in lost pay. Unfortunately, the Sun on Sunday doesn't come with citations; after 15 minutes of Google research, I am unable to find the origin – let alone evaluate the veracity – of the asserted financial impact on UK families.

Thankfully, an analysis of the impact of the working time rules was undertaken by the Department of Business, Industry and Skills under the previous coalition government and published in December 2014. The report found there had been a decline in the incidence of long-hours working in the UK since 1998 and that it is possible that the decline may in part be due to the 48-hour limit. The report also concluded that the impact of the regulations was mainly through increased employment of workers doing shorter working weeks, rather than through a reduction in total hours worked.

It is difficult to see how the 48 hour limit to the working week can be seen as such a "shackle" on workers who want to work longer hours. The UK's Working Time Regulations 1998 contains a 48-hour limit on average weekly working time. However, individual workers are allowed to opt out of the 48-hour week and as many as 3 million UK workers do so. As bureaucratic regulation goes, this is pretty light touch.

The working time rules also contain far more than just the 48-hour limit and includes the following entitlements for workers:

  • A daily rest period of 11 hours uninterrupted rest per day.
  • A weekly rest period of 24 hours uninterrupted rest per week (or, at the employer's choice, 48 hours per fortnight).
  • A shift rest break of 20 minutes when working a shift of more than six hours.
  • 8 hours maximum average normal hours for night workers in every 24 hour period.
  • 4 weeks' paid annual leave (increased to 5.6 weeks under domestic UK law).

Presumably, if government ministers want to scrap the working time rules then each of these entitlements is potentially exposed.

Why the fuss?

It is not particularly surprising that some Conservative politicians want to remove the working time rules. Working time has been one of the most difficult aspects of a prolonged uneasy relationship between the UK and the EU, and has been a particular bugbear of the Eurosceptic wing of the Conservative party.

Prior to the working time rules coming into force in the UK in October 1998, there had been very little statutory regulation of working time. Those rules that did exist were confined to particular industries and many had been repealed by the Conservative governments of 1979 to 1997. The then Conservative government was deeply hostile to the introduction of the EU's Working Time Directive; they voted against it at the Council of Ministers, took no steps towards implementation despite a three year deadline from November 1993 and brought an ultimately unsuccessful legal challenge before the European Court of Justice (ECJ). The Working Time Regulations were not enacted until 1998, almost two years after the deadline for implementation, and only following the election of a Labour government in 1997.

Post-Brexit future: an employment regulation battleground

For me, the most interesting aspect of the reports about the working time rules is what it tells us about the government's plans for employment regulation post-Brexit. Some employment law specialists had, perhaps complacently, assumed that they did not need to worry too much about the impact of Brexit on UK employment law. After all, Theresa May had made it clear that protecting and preserving workers' rights was one of her 12 objectives when leaving the EU in her Lancaster House speech in January 2017 and that commitment was repeated in the Conservative election manifesto in May.

Two significant things have changed since those commitments were made. First, the political situation has shifted drastically. Since the election, Theresa May is no longer in the powerful position she once appeared and probably does not have the political capital to stand up to a parliamentary party which contains many who are hostile to employment regulation and, particularly, the working time rules. Second, the economic impact of Brexit is becoming increasingly clear. The government appears to be toying with the idea of trying to mitigate for potential economic losses by pursuing a light regulation vision of a Brexit future – the so-called "Singapore Model".

In this context, it is worth looking again at the commitment in the manifesto; it is limited to retaining workers' rights "at the point of leaving the EU". Presumably, post-Brexit day it is all potentially up for grabs.

The end of working time?

It is too early to start writing an obituary for the working time rules. Yes, there are probably many within the current government and the Conservative parliamentary party who dream of removing the rules wholesale. It would also appear that, judging by the recent newspaper reports, they are likely to receive fulsome support from some aspects of the press.

However, just as the government is not strong enough to push through enhancements to workers' protections, they are also probably too weak to push through significant curtailments of those protections. The Labour party has already demonstrated that it will vociferously oppose any attack on the working time rules. Even with the support of newspapers like the Sun on Sunday, it is difficult to see how a wholesale attack on holiday entitlements and rest breaks could be anything other than a public relations gift to a worker-friendly, Jeremy Corbyn-led Labour party.

What is more likely is a tinkering at the edges of the working time rules on the issues which the British government and businesses have found particularly difficult. In particular, I expect there is likely to be an attack on the impact of the rules as they have been interpreted by the ECJ: for example, the right to holiday pay from non-basic pay (such as commission and overtime), the scope of backdated pay claims (as recently reported in this blog) and the ECJ's wide definition of working time on the vexed issue of on-call working.

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