Working Time Directive – Briefing Paper

The Working Time Directive was designed to ensure that workers are protected against adverse effects on their health and safety caused by working excessively long hours, having inadequate rest or disrupted work patterns.

The working time directive provides for:
 • a maximum 48 hour working week averaged over a reference period;
 • a minimum daily rest period of 11 consecutive hours a day;
 • a rest break where the working day is longer than six hours;
 • a minimum rest period of one day a week; and
 • a statutory right to annual paid holiday of 4 weeks, and
 • night working must not exceed eight hours a night on average

Specific groups of people are not covered by the Directive: managing executives or other persons with autonomous decision-making powers, family workers, and those officiating at religious ceremonies in churches or religious communities (collectively known as autonomous workers).

Other categories can be exempted from the directive's key provisions provided compensatory rest or appropriate protection is granted. These include employees who work a long way from home, or whose activities require a permanent presence or continuity of service or production, or who work in sectors which have peaks of activity. Examples include off-shore workers, security guards, journalists, emergency workers, agricultural workers, tour guides and a number of roles within sport and recreation.

The 'working week'
The maximum week of 48 hours is calculated as an average over a period of four months. This gives employers/employees the ability to organise work patterns in accordance with the nature of the work. In certain cases, the reference period can be extended to six months, e.g. for employees who work a long way from home, security guards, journalists, agricultural workers or transport workers.

The Commission believes that firms needed more flexibility in calculating the average maximum working week in order to be able to respond more easily to fluctuations in demand or seasonal peaks in activity, and provisions to make it simpler are included in the new proposals.

How would it change under the new proposal?
The standard reference period over which the average working week is calculated remains as four months, but Member States will have the option of extending it to one year, provided there is agreement on all sides. In that instance, the workers cannot work more than 65 hours in any week.

The proposal also states that the reference period can in no circumstances be longer than the duration of the employment contract.

The 'opt-out'
The Directive gives Member States an 'opt-out' provision, under which individual workers can waive the right to work no more than 48 hours per week. The opt-out has been used almost exclusively by the UK, but some of the new EU Member States have also expressed their desire to fully implement the opt-out.
 There has been concern that some UK employers are abusing the opt-out, for example requesting that employees sign the opt-out agreement at the same time as their contract of employment and therefore placing undue pressure on them to sign the opt-out. There are also concerns that UK legislation requires fewer checks and guarantees regarding records of hours worked etc than the Directive.

Figures show that 33 per cent of the UK workforce have signed an opt-out but only about half that proportion – 16 per cent - say they actually work more than 48 hours a week (compared to 15 per cent at the beginning of the 1990s).

How would it change under the new proposal?
Member States will only be able to apply the opt-out if it is expressly allowed under a collective agreement and if the individual worker consents.
The conditions attached to the worker's individual consent will also be tightened:
 • it cannot be given at the same time as the contract of employment is signed or during any probation period
 • it has to be given in writing
 • it is valid for a maximum of one year (renewable)
 • no worker can work more than 65 hours in any week
 • employers are obliged to keep records of the number of hours actually worked and to make those records available to the responsible authorities if required.
However, on the 11th May the European Parliament voted to end the opt-out, despite strong opposition from the UK Government. The matter was then presented before the Council of Ministers where it was defeated on the 3rd June. The Directive now returns again to the Parliament where it will be debated again.

On-Call Time
The absence of a definition of on-call time in the directive has also caused problems. It led to Court of Justice case-law that stipulates that on-call time must be counted as working time. This has major financial and organisational implications for many Member States and in particular the health profession.

How would it change under the new proposal?
A new category of 'on-call time' will be introduced (in addition to 'working time' and 'rest time') and will confirm that the inactive part of on-call time does not constitute working time within the meaning of the directive. Furthermore, if the worker is residing at the work place but is resting and not actually working, his on-call time will not be counted as working time.

However, Member States do have the option, under national law or by collective agreement of counting the inactive part of on-call time as working time if they wish.

The limit of 72 hours is set for granting compensatory rest to workers where the compulsory rest periods are waived.

Implications for Sport
Like all UK industries, if the opt-out is abolished then employees in the sport and recreation sector will be required to work a 48 hour week. This will cause difficulties for events managers, professional coaches and other jobs where seasonal activity demands periods of intense work followed by periods of rest or time off in lieu.

How great an effect this would have on the sector and how it would be regulated is not yet known.

Changes to the definition of the working week, restricting employees to a maximum of 65 hours, could also prove problematic for some roles in sport, but the ability to calculate this over a year should help to reduce the numbers affected.

The changes regarding on-call time should be helpful to sport and recreation, allowing mountain rescue services and other roles that include time on-call not to include that time within the working week.

It is possible that employees in sport and recreation could define themselves as autonomous workers and therefore have exclusion from the WTD. However, the definition of an autonomous worker requires greater clarification before that angle can be pursued.

Recent discussions have included the provision for certain sectors to be excluded from full compliance with the Directive. One of those sectors is tourism, and given the high degree of sport and recreation tourism in the UK, again there is the possibility that some employees in sport and recreation may not have to comply. However, again this exclusion will require greater clarification before being put into practice.

What happens next?
The European Council and Parliament have to collectively agree the new legislation, including the amendments regarding the opt-out, and the UK Government and other UK sectors, such as road haulage, health and manufacturing industry have mounted a strong lobbying campaign to retain the opt-out. Following the rejection of the proposal to end the opt-out by the Council of Ministers, the Directive is once again with the Parliament and will await further debate.

For more information please visit www.dti.gov.uk/er/work_time_regs/index.htm
Building Access Rights and Responsibilities into Outdoor Education

On the 16th April 2005, 32 specialists involved in outdoor learning attended the Scottish Natural Heritage (SNH) Sharing Good Practice event 'Building Access Rights and Responsibilities into Outdoor Education'. This workshop was aimed at managers and staff of outdoor education centres, as well as environmental and recreation specialists involved in outdoor learning, who want to find out more about the Scottish Outdoor Access Code and how to promote it through their work.

The event revealed the valuable role outdoor education providers can play in promoting responsible behaviour. SNH will now be taking the next steps to take a closer look at the ways we can support and link up with outdoor education providers to promote the messages in the Code. These next steps will include work on some of the recommended products and materials that can be developed and used by teachers and leaders of activities in the outdoors.

Have a look at the full report for further information. The SNH Access Education Team can be contacted at Clydebank on: 0141 951 4488.

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