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Briefings

The Working Time Directive

in | by Hugo Dixon

If you ask eurosceptics which single EU regulation they hate most, many will point to the Working Time Directive. This says that people are not allowed to work more than 48 hours a week on average. It also says that employees must receive a minimum four weeks paid holiday, a day off every week, a break every six hours and night shifts that don’t last longer than eight hours.

The directive is so unpopular, in part, because of the way it was imposed upon us in 1993. At the time Britain was not covered by social rules because our prime minister, John Major, had opted out of the so-called Social Chapter. But the Commission pushed through the legislation on the grounds that it was a health and safety issue. Although the government took the Commission to the European Court of Justice arguing it was overstepping its authority, it lost.

That said, the legislation isn’t quite as bad as it looks. This is partly because some of the provisions – such as a break every six hours or a day off every week – are reasonable. If people work without breaks, their health and productivity suffer. Sometimes that can put other people at risk.

The law is also not too damaging because countries are allowed to opt out of key parts of the directive. Britain – along with 15 other countries including Germany – have taken advantage of some or all of these opt-outs. The key one is the cap on working 48 hours a week: with the opt-out, anybody is free to work longer, but nobody can be forced to do so.

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But there are still problems with the directive because of the bizarre way the European Court of Justice has interpreted it. In one case, it decided that the time people spend “on call” at their workplace counts towards their working time, even if they are asleep. In another case, it said that workers are entitled to a rest immediately after a working day or night – making 24-hour shifts illegal. In yet another, it said employees can accrue holiday when they are on maternity or long-term sick leave.

These rulings have been costly for the NHS where junior doctors used to work long shifts, often sleeping at hospital for several nights in a row. Even so, the old days of 100-hour weeks weren’t that great for either the trainee doctors or their patients.

Both EU governments and the Commission wanted to amend the directive in 2008 to resolve some of these problems, particularly the definition of “on call” time. But the European Parliament refused to back the amended legislation unless all the countries abandoned their opt-outs. That unacceptable demand has led to a stalemate.

A particularly costly part of the directive, though, is something we’ve brought upon ourselves. In interpreting the requirement that everybody should have four weeks’ holiday, our government – under pressure from trade unions – agreed to add the eight annual Bank Holidays on top. So British workers actually get 5.6 weeks paid holiday. This gold-plating is expensive given that the government has estimated the cost of an additional bank holiday at £2.9 billion. We could avoid such costs by simply changing our own laws in Westminster. There’s no need to quit the EU. Given that it would be such a political hot potato to take away people’s holidays, it’s unlikely that we’d cut the cost of the directive even if we left the EU.

The Working Time Directive is also a great example of how Britain plays by the rules even when it doesn’t like them. In 2010, 22 EU states breached at least one of the directive’s provisions, according to a report by the Centre for European Reform. But the Commission hadn’t taken a single one of them to court. Britain was one of the few states with a clean record. Some say that we, too, should break the law. A better solution might be to take the Commission to court for not upholding the law. That would put a cat among the pigeons and might provide the impetus to reform some of the law’s absurdities.

This is an excerpt from “The In/Out Question: Why Britain should stay in the EU and fight to make it better” by Hugo Dixon. 

Factchecking by Sam Ashworth-Hayes