Why and how the EU’s Working Time Directive matters

This post was contributed by Dr Dionyssis G. Dimitrakopoulos, Senior Lecturer in the Department of Politics and Director of the MSc programme in European Politics and Policy. In this blog post he reports part of his ESRC-funded (grant RES-000-22-2510) research on the implementation of the Working Time Directive in Britain and France by governments of the Left and the Right.

The renewed attention to the European Union’s Working Time Directive in the UK is not undeserved. This directive exemplifies the conflict between a neo-liberal vision (of the UK and the EU as a whole) couched in unfettered markets and a centre-left alternative that acknowledges that effective rules and institutions are necessary if market power is to be harnessed for the benefit of the many.

The history of the regulation of working time is permeated by a struggle between those who initially sought to ‘humanize’ work or, later, regulate working time so as to boost employment by sharing the proceeds of productivity gains, and their opponents who have long argued that regulating time increases production costs and endangers jobs. In addition to the point of principle that, as François Mitterrand put it, ‘life is not a mere appendix to work’, those on the Left often point out the well-documented negative consequences of long working hours on health. They also argue that, since the distribution of bargaining power between employers and employees is unequal, especially in conditions of mass unemployment, governments and/or trade unions should strive to deal with it as a collective issue. Their neo-liberal opponents argue that it is a matter for ‘the market’, i.e. individual employees and their employers.

The European Union’s Working Time Directive was enacted in 1993 and it is part of the legislative measures that exemplify the determination of Jacques Delors (backed by several national governments) to add a social dimension to the single market, a strategic decision which played a major role in the British trade union movement’s pro-European turn in the late 1980s. The directive creates statutory rights that millions of workers now take for granted, including a limit to the amount of time an employee can be required to work (48 hours per week on average, including overtime, calculated usually over four months), weekly and daily rest periods, rest breaks and a right to four weeks’ paid annual leave that cannot be replaced by an allowance.

These were rather radical measures for an economy (such as the UK’s) that relied extensively on low pay and its sibling, i.e. a culture of very long working hours. In 1996 the Conservative government estimated that, prior to the introduction of the directive into UK law, some 2.1 million employees did not conform with the daily and weekly rest provisions, 2.7 million regularly worked more than 48 hours per week and about 200,000 exceeded the directive’s night work limit. Moreover, up to 3.8 million workers stood to benefit from the directive’s provisions on paid annual holidays since there was no statutory right to paid annual holidays in this country, until the introduction of directive into UK law by the New Labour government. In 1998 the New Labour government also estimated that 3.5 million night workers in Britain stood to benefit from the regular health checks stipulated by the directive.

The British Conservatives love to hate this directive though not because of its provenance. On the surface, their argument focuses on the need for flexibility. This ignores flexibility-promoting clauses such as (a) derogations that are possible if agreed by the two sides of industry but on condition of the provision of equivalent rest periods, (b) the exclusion of entire groups of workers (e.g., initially, doctors in training) but also (c) the famous opt-out clause which allows individual workers (not entire countries) to choose to exceed the 48-hour limit whilst complying with the remainder of the directive.  Given these clauses and the fact that this and several other EU directives in the socio-economic domain allow individual countries to pursue higher standards, one can conclude that Conservative politicians’ references to flexibility only mean one thing: the dilution of standards and a race to the bottom, i.e. the problem that directives such as this are meant to resolve.

When the New Labour government transposed this directive into UK legislation, it did so in a manner that clearly distinguished itself from the declared intentions of its Conservative predecessor that had fought and lost a legal battle to have the directive annulled by the European Court of Justice. The scope of the UK regulations is much broader, thus protecting more workers. The regulations also establish a shorter qualification period for paid annual leave, introduce more generous provisions in the agricultural sector and employ a more generous formula for the calculation of holiday pay than the method used even in the engineering industry where pay rates were not problematic, establish a longer in-work rest break and a mechanism so that ‘workforce agreements’ can be reached where there is no recognised independent trade union. However, the New Labour government also chose to transpose the opt-out clause in line with its ‘business-friendly’ image.

As regards the day-to-day implementation of the directive in the UK, evidence (such as the involvement – however imperfect – of the Health and Safety Executive) indicates that the New Labour government intended to make it work in practice but the effect of its efforts has been mitigated by the determination to remain as faithful as possible to its business-friendly profile. As a result, first, there is evidence of abuse of the opt-out by some unscrupulous employers in Britain’s flexible labour market, with individual workers being asked to sign up to the opt-out alongside their work contract, thus effectively turning the former into an (illegal) condition for the latter. This is one of the reasons why centre-left politicians across Europe have tried to abolish the opt-out clause but were defeated by a blocking coalition led by the New Labour government. Second, both in Britain and elsewhere, there are many more problems in sectors of the economy (such as catering, cleaning, restaurants, hotels) that are dominated by low skills, low pay and low levels of trade union membership.

The conflict between a neo-liberal vision (of the UK and the EU as a whole) and a centre-left alternative (regulated capitalism) is ongoing. That is the choice facing citizens across Europe today and one that makes a compelling case for participation in the European elections of May 2014.


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