Working Time Directive to be reviewed to reflect changes in working patterns, says Commission

Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com, said that the review would allow the Commission to address the impact of recognised changes to working patterns on the Working Time Directive, which was intended to protect public and private sector workers from the health and safety risks associated with excessive or inappropriate working hours. The Commission is consulting on the general impact of the directive, as well as some of its specific provisions, until 15 March 2015, he said.

"Working time can have a significant impact on worker safety and workplace risks," he said. "The Commission's consultation is a welcome opportunity to review the current legislation, conceived over 20 years ago, in light of fundamental changes to the economy, technology and working patterns."

The consultation asks for respondents' views on issues including the right of workers in some EU countries to opt out of the maximum 48-hour working week; the treatment of concurrent contracts, 'on call' and standby time; the application of the rules to specific sectors such as emergency services and health care; and whether specific rules should be introduced to regulate the likes of teleworking, 'zero-hour' contracts and flexitime.

Published in 2003, the current Working Time Directive applies to all sectors of economic activity but does not apply to self-employed workers. Its current requirements include a 48 hour limit on average weekly working hours, including overtime; rights to daily and weekly rest breaks; the right to a rest break during working time; and paid annual leave of at least four weeks per year. The directive also includes extra protections for night workers.

Although the directive's provisions are relatively detailed in order to meet its stated purpose of protecting workers' health and safety, it does make some allowances for flexible working arrangements and allows countries to set their own limits on weekly working time below the 48-hour maximum. In the UK, the 1998 Working Time Regulations give individual employees the right to work for more than 48 hours per week if they choose to do so, and confirm this choice in writing.

The Commission is seeking views on whether this opt-out should be maintained as part of the current consultation; as well as how the rules should apply when a single worker is employed under several concurrent contracts. It asks whether a revised directive should apply "per worker" or "per contract"; potentially limiting the total number of hours worked by an individual under any contract to no more than 48 hours on average per week. Respondents have also been asked to consider whether the standard four month 'reference period' over which the average number of hours worked per week should be calculated remains appropriate.

"The amount of time a person has worked in a day or across a week is relevant to managing risk, especially for safety critical tasks, and the adding together of concurrent contracts, rather than treating them separately, would be a sensible step to reduce the risks associated with fatigue and tiredness," said health and safety law expert Kevin Bridges.

"The individual opt-out of the maximum 48-hour week remains a pragmatic means of affording individuals in control of their own activities the freedom to regulate their own working hours. It would be surprising if the respondents to the consultation were in favour of removing it," he said.

The consultation is also seeking views on the treatment of 'on call' and stand-by time by the directive. Under the current Working Time Directive, as interpreted by the Court of Justice of the European Union (CJEU), any time in which a worker is 'on call' in the workplace and ready to provide services is counted as working time regardless of whether the worker is providing active services during that time. Stand-by time, during which the worker is not required to remain at the workplace but has to be contactable and ready to provide services, does not have to be counted under the existing rules.