With the European elections coming up it will be interesting to see how the public vote. The feeling of disappointment and loss of faith was clear to see in the recent local elections. Pundits are suggesting this all stems from the failure to agree a deal on leaving the EU. This I am afraid will be a conversation and discussion point for many months to come particularly as the deadline of Brexit has been pushed back to 31 October. With this in mind here, my colleagues have been looking at what affects business should consider when we do eventually leave. While this is some time ahead it is sensible to start planning now.

Prior to the Working Time Regulations 1998 (WTR), hours of work were largely unregulated, however, once the WTR was brought in through the Working Time Directive, it implemented numerous regulations relating to working hours. Nonetheless, there has been a call by some for the WTR to be scrapped post Brexit.

What did the WTR establish?

The WTR protects “workers”, which are defined as those working under:

An employment contract; or

Any other contract where they undertake to perform personally any work or service for the other party to the contract.

This therefore does not cover self employed persons, yet does cover employees, temporary workers and freelancers. This broad interpretation of worker has proven to be troublesome in the past, and could potentially be an area considered for reform post Brexit.

The WTR transferred into UK law the following (current) rights:

A limit of 48 hours that a worker can be in work per week – though workers can opt out of this.

5.6 weeks of paid annual leave.

11 consecutive hours’ rest in any 24 hour period.

A 20 minute break if the working day is longer than six hours.

At least one day off each week.

A limit on normal working hours on night workers, so on average they work eight hours in a 24 hour period.

WTR in practice

In practice, employees can “opt out” of the 48 hour maximum working hours per week. Such an “opt out” could relate to a specified period or apply indefinitely, but the agreement is always terminable by the worker if they give no less than seven days’ notice.

In a recent case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE it was suggested that the actual hours worked by workers should be recorded by the employer. In this case, Deutsche Bank were only keeping a record of absences (such as annual leave and sick leave) and not the actual hours worked by the workers per week. While this suggestion is not binding on employers, it does set out some form of “best practice” which employers may want to consider.

The WTR has brought controversy in other aspects of practice, such as in how holidays and sickness are dealt with. An example of this is that the law provides that if a worker becomes ill while on annual leave they are entitled to claim those days back to use as annual leave at a later date. As well as this, workers can accrue annual leave while being on long term sick leave. Some in business are critical of these protections and believe that they go too far in the employee’s favour.

The future of the WTR

As a result of these controversies, there is a call by some employers for the WTR to be scrapped.  If the WTR were to be scrapped, the individual impact on workers’ hours would depend on each employer. Nonetheless, as there is already an option to “opt out” in reality there may be little or no change for some. However, it can also be suggested that by removing minimum annual leave days and rest breaks, the health of the UK workforce would be detrimentally affected.

 In contrast, however, it is also argued by some that if the WTR were scrapped, employers would have more flexibility in terms of their workforce. As well as this, it is also thought by some that employees would have greater opportunity to earn overtime pay.  

With regards to the WTR, it is clear that the removal of such regulations may have negative consequences for workers. It is suggested that any such impact should be considered carefully and consulted on widely before any reform is considered.

However, as with the majority of concerns under Brexit, there is huge overarching uncertainty as to what steps the government will choose to make, if and when the UK leaves the EU.