European Commission faces revolt as more countries adopt UK opt-out

The European Commission has launched a three-month consultation on the future of the UK opt-out from the Working Time Directive¹ - just as more EU member states are beginning to use it to exempt key workers from the Directive's restrictions.

Under the terms of the 1993 Directive, workers are generally restricted to an average maximum 48-hour week, with rest periods and breaks, and a minimum of four weeks' paid leave each year.

However, the UK government negotiated an agreement, contained in article 18 of the Directive, which enables EU member states not to apply the 48-hour maximum if a number of conditions apply.

The conditions are that:

the worker must agree to work more than 48 hours a week;

no worker should be disadvantaged by deciding not to opt out;

the employer must keep up-to-date records of all workers who carry out such work; and

the records must be made available to the authorities, who can restrict working hours above the maximum for health and safety reasons.

The UK has been the only member state to make extensive use of the opt-out, and the Commission is concerned that the UK is also the only member state where working time has increased over the past decade.

But although there have been suggestions that the Commission would like to end the opt-out, the political situation has changed thanks to two European Court of Justice (ECJ) rulings^2,3 that redefined time spent on-call as working time.

The rulings will affect the healthcare sector most heavily, and preliminary estimates given during the two court cases indicate that:

according to the German government, medical staffing requirements will rise by 24%, requiring 15,000 to 27,000 doctors at a cost of €1.75 billion;

the UK government believes it will need between 6,250 and 12,550 more doctors and 1,250 other staff, at a cost of €540 million to €1.1 billion; and

the Dutch government estimates that it will need 10,000 new care staff at a cost of €400 million.

As a result of the ECJ rulings, Germany, the Netherlands and Spain are drawing up legislation to incorporate the opt-out into their healthcare sectors; and France has amended decrees relating to hospitals and public healthcare establishments allowing workers to work longer hours in return for time off in lieu or compensation.

Luxembourg already uses the opt-out in hotels and catering so that the sector can respond to seasonal fluctuations.

And among future member states, Malta and Cyprus have already adopted the opt-out into national legislation, Slovenia applies it to doctors, and Estonia, Hungary, Latvia and Lithuania have indicated they may use it.

The consultation complies with a requirement of the 1993 Directive that it should report by the end of 2003 on the operation of the opt-out and use of reference periods.

Although the Commission has not made specific proposals, it is asking for views on:

the length of reference periods used for calculating working time;

the definition of working time following the ECJ rulings;

the application of the opt-out; and

how the Directive could be used not only to protect workers' health and safety but to reconcile work and family life.

The consultation exercise has been welcomed by the TUC. General secretary Brendan Barber said the opt-out had caused "serious problems" in the UK and could not be allowed to remain in place.

1. Directive 93/104/EC.

2. Working time: doctors' on-call time at work was "working time" (Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (1) .

3. "Working time" includes time when on-call doctor is sleeping at hospital (Landeshauptstadt Kiel v Jaeger ).