By Edward Wanambwa
Reports that the government may try to secure further opt-outs from the EU working time directive are very concerning.
Firstly, Britain already has a significant opt-out from the directive. Individual employees have the right to opt-out of the 48-hour limit on average working time.
Whilst it is unlawful to dismiss an employee or otherwise subject them to victimisation for refusing to sign an 'opt-out agreement', there is currently no legal prohibition on refusing to hire an employee unless they agree to opt-out. How many employees, especially in the current economic climate, would refuse to sign an opt-out agreement if presented with one by a prospective employer, or even their current employer?
Secondly, many workers in Britain are already excluded from key protections relating to working time. This includes workers who can determine their own working hours (including managing executives with autonomous decision making powers), family workers, junior doctors, the police, emergency services workers, members of the armed forces, the clergy, domestic servants and a variety of 'special case' workers, such as certain workers in the agriculture, tourism, postal and security sectors.
Even if not required by legislation, I expect that many employers would voluntarily maintain working time policies that are not too dissimilar to current statutory arrangements. They'd do so for reasons relating to employee relations, wanting to maintain a healthy and happy workforce and in recognition that productivity levels may decline if employees are exhausted and/or under excessive stress from working very long hours.
Evidence of such progressive thinking can already be seen in the many workplaces where employers offer enhanced holiday entitlements, private medical insurance, enhanced sick pay, access to an on-site gym or subsidised gym membership and a whole host of other benefits designed to promote health and wellbeing, which are not required by law.
Removing protections afforded by the working time regulations may also have the unintended effect of increasing the number of claims against employers who seek to take advantage of any watering down of the regulations.
Such employers could find themselves being sued for breaches of the requirement to take reasonable care of the health and safety of their employees, which derives from the implied term in employment contracts, the Health and Safety at Work etc Act 1974 and also the law of negligence.
These employers should also think about the possible impact on staff retention and the importance with which many employees view a healthy work-life balance. Without a statutory 'safety net', an employer's working time practices may be elevated to the same level of importance, for prospective employees, as holiday entitlements, private medical benefits, enhanced sick pay arrangements and, for some employees, salary levels. Such considerations may also precipitate a 'brain drain' towards employers who offer more lenient working time practices.
Any serious dilution of current working time arrangements would also be likely to have a disproportionate impact on parents with primary child care commitments, who are more typically women, and undermine the trend towards more 'family friendly' workplaces.
Britain already has a watered down legal framework relating to working time and many employees are already excluded from core protections.
There would be potential legal and commercial pitfalls for unwary employers who viewed any weakening of the working time regulations as a charter to force employees to work extreme hours.
Edward Wanambwa is a partner in the employment law team at Russell-Cooke Solicitors.
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