The British Government's argument that the Working Time directive constitutes part of the Social Chapter - from which it has opted out, and it is therefore not bound - has failed. It has now been specified that the directive constitutes a health and safety measure which is not subject to an opt-out.
The Working Time directive covers the following points: a maximum average working week of 48 hours; prescribed daily and weekly rest periods; three weeks' paid annual leave (rising to four in 1999), and health and safety measures to protect night workers.
Certain occupations fall completely outside the ambit of the directive. These include those employees working in air, rail and sea transport. There is also a let-out with regard to the provisions governing maximum weekly working hours, breaks and rest periods, for managing executives, family workers and other persons "with autonomous decision-making powers".
Journalists and spies, together with postal and telecommunications workers, will be disappointed to find that many of the measures will pass them by.
Despite the directive's intention, some of its provisions are not as clear and as stringent as they at first appear. The bar on working more than an average of 48 hours a week can be removed, subject to certain records being maintained, provided that an employer and employee agree to longer working hours. The question that may become topical is whether that consent has been given freely.
The only provision that seems to embrace most workers is the right to paid holiday. This will be welcomed by many casual workers. At present employees are not entitled to holiday, paid or unpaid, as of right. They must show a contractual entitlement.
The directive is comparatively short and deceptively straightforward. However, giving its provisions UK legislature expression is likely to prove an arduous task.
If the Government attempts to meet its November deadline, those given the task of drafting the necessary legislation will presumably have to consent to working more than an average of 48 hours a weekn
Ian Hunter is an employment law specialist with the City law Firm Bird & Bird.Reuse content