I am writing to update your Committee on a request from the Commission that the UK produce a National Report on the "Practical Implementation of Directive 2003/88/EC concerning certain aspects of the Working Time Directive".

  This is a routine request, issued to all Member States and in line with a requirement in the existing Working Time Directive for the Commission to produce a report on Member States implementation of the Directive every five years. However, given the high level of interest in the dossier, I was sure that the Committee would wish to be informed.

  The Commission has requested that Member States report in a common format which is attached (not printed). The questions cover information on the following:

—  Legal instruments used to transpose the Directive and any subsequent amendments, including court decisions;

—  The derogation for doctors in training;

—  How the implementation of the Directive is monitored and the effectiveness of the transposing measures;

—  Priorities for taking the subject area forward, and suggestions for adapting and amending the Directive, and;

—  Positive and negative aspects of the implementation of the current Directive.

  The original Directive stipulates "Member States shall report to the Commission every five years on the practical implementation of the Directive, indicating the viewpoints of the two sides of industry". The UK intends to respond setting out the facts, making our position clear on how the dossier and subject should be taken forward, and indicating the views of social partners.

  On a separate note, although it is far from certain, the next Presidency (Portugal) has stated that they may take the dossier forward if they can see a clear solution.

30 May 2007

  Jim Fitzpatrick wrote to you on 30 May 2007 informing your Committee of a request from the Commission for the UK to produce a National Report on the "Practical Implementation of Directive 2003/88/EC concerning certain aspects of the Working Time Directive".

  This was a routine request, issued to all Member States and in line with a requirement in the existing Working Time Directive for the Commission to produce a report on Member States" implementation of the Directive every five years.

  I am now writing to inform the Committee that we have now submitted the UK report to the Commission and I enclose a copy for the committee's information. As outlined in Jim Fitzpatrick's letter, our response sets out the facts regarding UK implementation and makes our position clear on how the matters should be taken forward.

  On a separate note, it remains unclear as to whether the current EU Presidency (Portugal) will take the dossier forward. They have tentatively added it to the agenda for the December Employment Council but have made it known that they will only table the dossier for discussion if they can see a clear way forward.

4 September 2007

1.  INTRODUCTION

Please state how the report has been produced

List the Social Partners consulted and describe the methods used for consultation

State the method used to record the positions expressed by the social partners (specifically on each point, or generally in an annex, etc)

  The Working Time Regulations 1998,[142] which implemented the Working Time Directive 2003/88/EC, came into force on 1 October 1998 in Great Britain and 23 November 1998 in Northern Ireland. The Department of Trade and Industry (DTI) has overall responsibility for the implementation of the Directive in Great Britain (England, Wales and Scotland). Employment Law is a devolved matter under the Northern Ireland Act 1998, and so responsibility for implementing the Directive in Northern Ireland falls to the Northern Ireland Assembly and the Department for Employment and Learning Northern Ireland (DELNI) who have contributed to the compilation of this report. The GB legislation has been substantively replicated in Northern Ireland.

  As requested, we have asked UK social partners for their views on the practical implementation of the Working Time Directive. Given the importance of the issue, it was decided to conduct a relatively formal consultation process, which involved writing to a number of key UK social partners, enclosing the Commission questionnaire. The TUC committed to consult their member trade unions if and where appropriate. Other Government Departments, with sectoral or specific interest, were also asked to write to their key social partners. A full list of those contacted with regard to this report is attached as an Annex. Social Partner positions will be accurately reflected throughout this report, with a summary of views recorded under the relevant questions.

2.  LEGAL SITUATION

Please annex a comprehensive list of all transposing legal instruments presently in force, indicating (where applicable) the relative legal hierarchy of different instruments. If a measure applies only at regional or sectoral level, please indicate its exact scope. If transposition is by a legal code, please confirm which are the relevant provisions

If transposition is in part by collective agreements, please indicate the relative legal hierarchy of collective agreements and legal provisions. Please also indicate how transposition is assured, regarding those workers who are not covered by collective agreement. In the remainder of the report, please indicate what is the provision under the main applicable collective agreements

If significant changes have been made during the last five years to the transposing legislation, please indicate what are the main changes

  The Working Time Directive 2003/88/EC is implemented in Great Britain by the Working Time Regulations 1998 (S.I. 1998/1833). The Regulations have subsequently been amended by:

—  The Management of Health and Safety at Work Regulations 1999, 1999/3242.

—  The Working Time Regulations 1999,1999/3372.

—  Working Time (Amendment) Regulations 2001, 2001/3256.

—  Working Time (Amendment) Regulations 2002, 2002/3128.

—  The Working Time (Amendment) Regulations 2003, 2003/1684.

—  The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, 2003/3049.

—  The Employment Act 2002 (Dispute Resolution) Regulations 2004, 2004/752.

—  The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004, 2004/1713.

—  The Working Time Regulations 1998 (Amendment) Regulations 2004, 2004/2516.

—  The Working Time Regulations 1998 (Amendment) Order 2005, 2005/2241.

—  The Working Time (Amendment) Regulations 2006, 2006/99.

—  The Serious Organised Crime and Police Act 2005 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006, 2006/594.

—  The Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006, 2006/557.

—  The Working Time (Amendment) (No.2) Regulations 2006, 2006/2389.

  In Northern Ireland, the Working Time Directive is implemented by the Working Time Regulations (Northern Ireland) 1998 (S.R. 1998 No. 386). The Regulations have subsequently been amended by:

—  The Management of Health and Safety at Work Regulations (Northern Ireland) 2000—S.R. 2000 No. 388.

—  The Working Time (Amendment) Regulations (Northern Ireland) 1998—S.R. 1998 No. 422.

—  The Working Time (Amendment) Regulations (Northern Ireland) 1999—S.R. 1999 No. 133.

—  The Working Time (Amendment) Regulations (Northern Ireland) 2000—S.R. 2000 No. 7.

—  The Working Time (Amendment) Regulations (Northern Ireland) 2003—S.R. 2003 No. 119.

—  The Working Time (Amendment No.2) Regulations (Northern Ireland) 2003-S.R. 2003 No. 330.

—  The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003-S.I. 2003 No. 3049.

—  The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004—S.R. 2004 No. 521.

—  The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004—S.R. 2004 No. 1713.

—  The Serious Organised Crime and Police Act 2005 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006—S.I. 2006 No. 594.

—  The Working Time (Amendment) Regulations (Northern Ireland) 2006—S.R. 2006 No. 135.and

—  The Working Time (Amendment No.2) Regulations (Northern Ireland) 2006—S.R. 2006 No. 389.

  Where appropriate, corresponding changes have also been made to the Guidance on the Working Time Regulations. This Guidance is produced to explain the Working Time Regulations to workers and employers and to indicate further sources of advice, including the routes to resolve disputes.

  In accordance with the Working Time Directive, the UK's Working Time Regulations allow certain provisions to be varied by collective agreement (night working limits, extensions of the reference period, rights to rest breaks and rest periods as long as compensatory rest is provided immediately).

3.  RECENT TRANSPOSITION

  If you have transposed the Directive for the first time within the last five years please:

—  Describe the legal situation regarding working time before the Directive was transposed.

—  Explain precisely how transposition changed the previous legal situation regarding working time.

—  Describe any specific difficulties encountered during the transposition of the directive into the national legal order, and any measures taken in response to those difficulties.

—  Describe what action was taken to disseminate information about the transposing measures.

—  Describe any flanking measures adopted to facilitate the practical implementation of the Directive.

    Not relevant to the UK.

4.  PREVIOUSLY EXCLUDED SECTORS

  If you transposed Directive 93/104/EC for the first time before 2002, then no reply to question 3 is necessary. However, as regards the scope of the former Directive 2000/34/EC (the "excluded sectors directive"), please reply as follows:

—  Please indicate how Directives 2000/34/EC and 2003/88/EC have been transposed, as regards Doctors in training.

—  Describe the previous legal situation regarding the working time of Doctors in training. Explain precisely how transposition changed the previous legal situation regarding Working Time.

—  Describe any specific difficulties encountered during this aspect of transposition into the national legal order, and any measures taken in response to those difficulties.

—  Provide an assessment of any further action taken or planned.

  Directive 2000/34/EC (the Horizontal Amending Directive) and Directive 2003/88/EC were transposed in the UK, as regards Doctors in Training, through the Working Time (Amendment) Regulations 2003 (S.I. 2003/1684).

  The UK Government has supported the implementation of the European Working Time Directive (WTD) as part of its commitment to improving the working lives of National Health Service (NHS) staff. The safety of patients and staff is paramount.

  Union representatives for the health sector welcomed the implementation of the Working Time Directive for doctors in training, which reinforced existing UK Government policy and partnership working to reduce the working hours of junior doctors. Unions highlighted the additional protections in the "New Deal" agreement with the UK Government to prevent employers from issuing contracts to junior doctors for working arrangements of more than 56 hours of work per week and the implementation of financial penalties for employers that allow doctors to work over these limits.

  Industry representatives for the health sector consider that the Working Time Directive has been a useful addition to the health and safety of workers but that the measures have been expensive to put into operation and therefore costly to the NHS.

  The NHS fully implemented the Working Time Directive requirements for doctors in training by recruiting thousands of extra doctors and adopting innovative working practices. The Government worked with NHS employers and health professionals and invested in a range of pilot projects to support implementation. For example, about half of acute hospitals (ie hospitals that take emergency admissions and are able to perform unplanned operations) have implemented "Hospital @ Night" multi-disciplinary teams to provide the range of care patients need at night and replaced demarcated medical teams.

  Union representatives for the health sector welcomed the UK's implementation of the reduction in hours for junior doctors, and participated fully with the Governments' implementation of the provisions. With the full involvement of Union representatives, similar working groups have been set up to prepare for the next stage of implementation in 2009.

  The Government continues to work with health professionals and sponsors new ways of working in the NHS to comply with these provisions and to improve services. The Government commissioned a team (National Workforce Projects) to support the implementation of the 2009 measures across the NHS and this team is overseeing a programme of over 20 Working Time Directive pilots, including helping to extend "Hospital @ Night" services throughout the entire day.

  Whilst parts of the NHS have benefited from Working Time Directive compliance, by reinforcing progress already being made in the UK to reduce the working hours of doctors in training, there have also been significant costs to doctors in training which have resulted from the interaction of the SiMAP/Jaeger judgments with the provisions. SiMAP/Jaeger interpretations have been fully implemented, although the Judgments made this more difficult in some services that do not lend themselves easily to NHS initiatives put in place to comply with the Directive. In addition, maintaining good quality medical education and improving patient care is made more difficult in parts of the NHS by the restrictions on working patterns from the European Court of Justice SiMAP and Jaeger Judgments.

  These rulings significantly increased shift working by defining all residential on-call time as work and requiring compensatory rest to be taken immediately after a period of work finishes. Increased shift working has reduced the amount of (better quality) daytime training opportunities for doctors, particularly in the craft specialties such as surgeons. Before SiMAP/Jaeger, the contract for surgeons enabled them to receive up to 56 hours daytime training. Evidence from the medical professions indicated that the operating experience of trainee surgeons reduced by about a fifth following compliance with the SiMAP/Jaeger rulings.

  Union representatives highlighted difficulties for medical training caused by a combination of some poorly planned shifts and compliance with the Working Time Directive and the ECJ Judgments and voiced concerns that training had suffered as a result, particularly in some specialties such as surgery. They believe that some trainees are not receiving adequate exposure to daytime training. They point to the fact that the drive to bring down total hours has led to increasing proportions of night shift working, with little opportunity for training to be delivered by senior staff.

  Industry representatives highlighted that the Jaeger (compensatory rest) ruling made the Directive more difficult to implement in practice and consequently may affect patient care as the immediate compensatory rest requirement can very occasionally result in patient care being withdrawn if it is not possible to arrange cover to replace staff taking immediate compensatory rest. They went on to suggest that if compensatory rest could be taken within a reasonable period of time it would support continuity of patient care and reduce disruption to doctors' training.

  Industry representatives commented that the SIMAP/Jaeger rulings had increased costs and that the NHS had recruited thousands of extra staff to prevent gaps in patient services at a large cost without improving productivity. They added that the move to shift working from resident on-call rotas meant that many doctors in training now spent time working less productive night shifts and therefore treat fewer patients.

5.  MONITORING OF IMPLEMENTATION

Please state which bodies are responsible for monitoring the implementation of the transposing measures. Are any reports published on this monitoring

Describe the methods used for monitoring

Describe any problems encountered in monitoring implementation of the transposing measures, and any measure taken to address these

  The UK has a comprehensive system concerned with monitoring the implementation of the Working Time Regulations. The various bodies concerned and their remits are outlined below. As the vast majority of UK workers are in the formal economy, we do not experience the same problems as some other Member States who have large "grey" economies where many workers are not protected from being forced to work long hours, do not get rest breaks and paid annual leave, are not covered by health and safety legislation—resulting in difficulty monitoring them.[143]

  It is also our view that a 12-month reference period for weekly working hours would not only provide welcome additional flexibility to both employee and employer, but would also greatly enhance the ability to monitor the effectiveness of the regulations and ability to compare implementation between Member States, given the limited and localised use of UK collective agreements to extend the reference period to 12 months (from the current 17-week default).

  All workers who rely on their rights under the Working Time Regulations are protected from dismissal or detriment through a well established and widely understood enforcement package. The Employment Rights Act 1996 is a key source of employment rights in GB and confers an express right of redress through complaint to an Employment Tribunal for workers whose employer fails to follow the Working Time Regulations.

  Section 45A of the Employment Rights Act/Article 68A of the Employment Rights (Northern Ireland Order 1996) protect workers from suffering detriment for refusing to exceed the working time limit; refusal to work when entitled to a rest period; refusal to sign a workforce or other agreement; for acting as a workforce representative or for bringing proceedings to enforce rights granted under the regulations. For the purpose of the regulations, detriment can cover a wide range of discriminatory actions, such as denial of promotion, facilities or training opportunities.

  Section 101A of the Employment Rights Act / Article 132A of the Employment Rights (Northern Ireland Order 1996) provide a remedy for any worker dismissed or selected for redundancy because of a refusal to work in excess of the weekly working time limits or when entitled to a rest break period. In these circumstances a worker would be entitled to pursue a claim through an Employment Tribunal (or an Industrial Tribunal if in Northern Ireland). As illustrated in the answer to Question 6, the rights granted under the Employment Act/Employment (Northern Ireland) Order and the Working Time Regulations are effectively enforced through the Employment Tribunals (the Industrial Tribunals in Northern Ireland).

  The UK Government collects data concerning the number of claims and cases taken to the Employment Tribunal Service. To understand the figures below, it is necessary to bear in mind that claims may be registered as "group actions" whereby a large number of workers in a particular company each register an individual claim against an employer and although they are registered as multiple claims, it is heard as a single claim against a single employer. In addition, these cases can be registered more than once leading to multiple claims relating to a single issue (the majority of cases in 2005/6 refer to the same issue in the same company).

  Only a minority of cases are decided by the tribunal. Others are withdrawn, or settled privately or with help from ACAS (the UK Government's advisory and arbitration service)—official statistics do not record the outcome. The statistics relating to all claims and cases for the working time jurisdiction are in Table 1 below.

  In addition to individual enforcement before an Employment Tribunal (Industrial Tribunals in Northern Ireland), the Working Time regulations are also enforced by the Health and Safety Commission, through the Health and Safety Executive (HSE), or local authority Environmental Health Departments. The HSE is responsible for enforcing the working time limits and entitlements to health assessments in factories, building sites, mines, farms, fairgrounds, quarries, chemical plants, nuclear installations, schools and hospitals. Local authorities ensure that the regulations are followed in shops and retailing, offices, hotels and catering, sports leisure and consumer services. HSE Northern Ireland monitors enforcement of the relevant provisions in Northern Ireland. If any of the various bodies are provided with information that enables them to do so, they will investigate specific individual complaints about enforcement of the Working Time Regulations. Where there is evidence of non-compliance, enforcement action will be considered (the HSE has begun investigations on over 160 Working Time cases since 2004).

  Some union representatives believe that the UK's working time enforcement regime should be strengthened with more resource to prevent abuse. Industry representatives are satisfied with the existing regime, believing that it is an effective and robust model, focussing resource where there is cause for concern.

  More widely, the UK has recently launched a Vulnerable Worker Enforcement Forum to look specifically at workers who work in an environment where there is a high risk of them being denied employment rights and who do not have the capacity or means to protect themselves from potential abuse. The forum will bring together experts from unions, business, enforcement and advice bodies to look at the best way to protect the vulnerable in the workforce. The enforcement of employment legislation, including of the Working Time Regulations will form part of the Forum's scope.

6.  JUDICIAL INTERPRETATION

Please indicate whether there have been court decisions at national level interpreting or applying the Directive on any significant issues, and what were the key legal points in issue

  There have been a number of court decisions at national level interpreting or applying the Directive on significant issues since the UK last submitted a National Report on the practical implementation of the Working Time Directive. The key legal decisions are:

—  Commissioners of Inland Revenue v Ainsworth, [2005] EWCA Civ 441.

—  Gallagher v Alpha Catering Services Ltd (t/a Alpha Flight Services) [2004] EWCA Civ 1559.

—  MacCartney v Oversley House Management, [2006] ICR 510.

—  Anderson v Jarvis Hotels PLC, EAT/0062/05.

—  Plumbing Services Ltd v Miller [2005] All ER (D) 89 (Jun) EAT.

—  Wainwright v MSA (Britain) Ltd [2003] EWCA Civ 196.

—  Clarke v Frank Staddon Ltd, ET 2203683/01.

  Details of the key legal points in issue are set out below.

Commissioners of Inland Revenue v Ainsworth, [2005] EWCA Civ 441—Key issue was rights pursuant to Article 7 of those on long-term sick leave

  The Court of Appeal held that a worker on long-term sick leave was not entitled under regulation 13 of the 1998 Regulations to four weeks' annual leave in a year when he had not been able to attend for work, nor was he entitled to compensation under regulation 14 of the Regulations upon the termination of his employment during such a year. The courts ruled that the Regulations were made in the context of health and safety. They provided for release from the pressures of daily work. An employee who was not in any event required to work during the period in question stood to gain no benefit to his health by taking leave.

  This decision was appealed to the House of Lords who have referred the matter to the European Court of Justice pursuant to Article 234 EC Treaty: Stringer C-520/06.

Gallagher v Alpha Catering Services Ltd (t/a Alpha Flight Services) [2004] EWCA Civ 1559—Key issue was rights pursuant to Article 4

  The Employment Appeal Tribunal held that periods where workers are not actually performing the functions of their jobs but are expected to remain at their employer's disposal ("downtime") could not amount to a rest break. The essence of a rest break is that the worker knows at the start of it that he or she has twenty minutes of uninterrupted rest. A rest break cannot retrospectively become a rest break only because it can be seen after it is over that it was an uninterrupted period of 20 minutes.

MacCartney v Oversley House Management, [2006] ICR 510—Key issues were the true construction of "working time" in Article 2; cross sectoral enforcement of ECJ rulings on SiMAP and Jaeger and their application to on-call time when the place of work is the primary residence

  The claimant was employed as a resident manager of sheltered accommodation, Her contract of employment specified her hours of work as "four days per week of 24 hours on site cover". The EAT held that the claimant was working throughout the 24-hour period when she was on call. Having regard to the principles laid down by the European Court of Justice in Landeshaupstadt Kiel v Jaeger and SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, the whole period when the claimant was on call constituted working time.

Anderson v Jarvis Hotels PLC, EAT/0062/05—Key issues were the true construction of "working time" in Article 2; cross sectoral enforcement of ECJ rulings on SiMAP and Jaeger and their application to on-call time

  The claimant was a Guest Care Manager in the employment of a hotel company who was required to "sleep-over" in the hotel several nights each week. The Employment Appeal Tribunal held that time spent by the claimant, at the respondents' disposal during sleep-overs, was working-time.

Plumbing Services Ltd v Miller [2005] All ER (D) 89 (Jun) EAT—Key issue was who is a worker for the purposes of the regulations

  The appellant company provided plumbing services to the building industry. The respondents were not employees and had no contractual documentation but worked exclusively for the company for three years on a number of different projects. The respondents claimed that they were entitled to holiday pay under the Working Time Regulations 1998. The EAT held that while the respondents were not employees of the company they were nevertheless workers within the meaning of the 1998 Regulations because they did not carry on a business undertaking, were required to perform their work personally and were accordingly entitled to holiday pay.

Wainwright v MSA (Britain) Ltd [2003] EWCA Civ 19—Key issue was the right to protection from dismissal or detriment for workers seeking rights granted under the Working Time Directive

  The employee had been employed by the employer as a travelling field service engineer. Following an incident where the employee refused to make an additional visit to a customer to one already scheduled, he was dismissed for gross misconduct. The employee issued proceedings against the employer on grounds that amounted to (i) automatic unfair dismissal, contrary to sections 101A and 104 of the Act, on the basis that the real reason he had been dismissed was that he had made complaints to his union that the employer's system of work was contrary to the Working Time Regulations 1998 and; (ii) breach of contract, relating to the requirement under his contract of employment that he work whenever required, which led to his working hours exceeding the requirements of the 1998 Regulations. The employment tribunal found that the employee had been fairly dismissed for a reason relating to his conduct and therefore dismissed his claim. The employee appealed and the Court of Appeal ruled that the employment tribunal had made a number of errors of law including failure to give sufficient reasons relating to the employee's claims in respect of the 1998 Regulations. All lower courts must now follow these principles.

Clarke v Frank Staddon Ltd, ET 2203683/01—Key issue was prohibition on "Rolled Up Holiday pay"

  Following a decision from the ECJ (C-131/04 and C-257/04) the ET held that holiday pay required by Article 7(1) of the Directive is intended to enable the worker actually to take the leave to which he is entitled. The term "paid annual leave" means that for the duration of annual leave, remuneration must be maintained.

7.  ASSESSMENT OF EFFECTIVENESS

Describe the data used to assess the effectiveness of the transposing measures

  The UK Government commissions and uses a wide array of surveys and other supporting information to assess the effectiveness and impact of the Working Time Regulations (for example the UK Labour Force Survey, the UK Workplace Employment Relations Survey, the UK Employment Relations Research Series and the European Working Conditions Survey).

  There does, however, exist some difficulty when attempting to compare the effectiveness of the transposing measures from Member State to Member State as it is not always a case of comparing like with like. There are large variations across the EU in terms of how the Working Time Directive has been implemented and, specifically, how the various derogations in the Directive that allow longer hours working have been interpreted (such as the derogation for autonomous workers, the use of collective agreements to allow flexible interpretations, and the "per contract" implementation). Whilst this does not impact on the UK's ability to assess our own transposing measures, it does impact on our ability to effectively benchmark ourselves against other Member States. Moreover, those who are clear and precise about how the directive has been implemented are penalised and suffer the threat of legal uncertainty. Member States that are vague do not have the same threat and their workers remain unprotected.

  An analysis of the various surveys and reports concerning UK implementation shows a positive picture:

—  Over 80% of workers are aware of their rights to minimum rest breaks and holiday entitlement.

—  Approximately 7 out of 10 long-hours workers would not want a cut in hours if it meant a cut in pay.

—  Long hours working is falling across the board. Government figures show that in spring 2006, 17.2% of full-time employees usually worked more than 48 hours, compared with 22.8% in spring 1997.

—  Job security is high. In the EU27, an estimated 14% feared losing their jobs within 6 months. In the UK it is only 7%.

—  Average usual working hours ranged from 33 hours per week in the Netherlands to 46.4 hours in Romania. The UK was second lowest with 34.8 hours, well below the EU average of 38.6 hours. These figures tally well with the European labour Force Survey rankings (Eurostat 2006).

—  85% of UK workers said their working hours fit "well" or "very well" with their family and social commitments (4th European Working Conditions Survey 2007).

—  9.5 million workers in the UK choose to make use of flexible working patterns.

—  Continue to have one of the EU's best health and safety records. Fewer UK workers reported that their work affected their health than in any other EU country and the UK is second in the EU in terms of the number of days per worker lost due to accidents in the workplace.

8.  EVALUATION

Please list the positive and negative aspects of the practical implementation of the legislation

Please indicate whether you have experienced problems of interpretation regarding any aspects of the Directive, and whether there are any points on which you would like clarification

Positive Aspects

  The Government welcomed the protections offered by the Directive that have granted workers the right to paid annual leave, rest breaks and protection from being forced to work long hours. The Government has supported and gone further than some of the measures in the existing Working Time Directive, creating a general culture shift in the UK shown by a continuous fall in working hours, the commitment to deliver extra annual leave entitlement (above that required by the Directive) and the new employment right to request flexible working conditions.

  Union representatives singled out the Government's commitment to the annual leave entitlement which had given two million workers in the UK more holiday as a particularly positive aspect. Industry representatives praised the UK's implementation of the opt out, protecting workers from being forced to work longer than 48 hours but allowing those that wish to work longer to retain their right to determine a working pattern that met their needs, and giving them the legal right to take rest breaks and paid annual leave. Social partners in the health sector had welcomed the Directive, with union representatives adding that rest breaks and working time limits benefit doctors and their patients. One industry representative also mentioned that the measures increased the protection for younger workers allowing them more frequent rest breaks.

  All of the these rights and entitlements in the Working Time Directive are only conferred on workers in the formal economy and the UK would strongly oppose any measure that would force workers wanting to earn extra money by working overtime into the grey economy where they would lose these protections.

Negative aspects

  It is the UK Government's firm belief that the ECJ judgments on SiMAP and Jaeger interpreted the Directive in a way that was never intended, introducing over-burdensome requirements and increased levels of uncertainty over the potential for future legal judgments to cause problems for accepted working practices and labour market traditions. These concerns are shared by both sides of industry and were a common complaint in the replies from social partners.

  In the UK health sector, SiMAP/Jaeger has distorted medical training and required substantial funding to be focused on filling rotas rather than improving patient care or medical training. The judgments are also causing difficulties for community and social care services. For example, a cornerstone of UK healthcare strategy is to move more care out of hospitals and closer to people's homes as improvements in technology mean, for example, that more severely disabled patients can be cared for at home to improve their quality of life. The relationship between staff and patients with long term care needs is central to effective care delivery but SiMAP/Jaeger means that 24 hour care needs to be shared amongst much bigger teams of staff which can be impractical and expensive. However, many social partners in various sectors—not just the healthcare sector—have been severely impacted by these ECJ judgments.

  A number of industry representatives highlighted the burden and bureaucracy of record keeping as negative aspects, especially for SMEs. One singled out the complexity of the law as disproportionate to the impact, citing the difficulty in achieving a collective agreement to extend the reference period to 12 months. Another felt that the derogations in Article 17 were not clear. The CBI felt the Directive has gone beyond the original intention to provide minimum health and safety protections and that the different methods of implementing the Directive in the EU and the complexity of the regulations have had a negative impact, particularly on SMEs.

  One union representative and one industry representative supported change to introduce a ban on signing the opt out at the same time as the employment contract, to offer workers more protection to make a free choice to refuse to opt out. The TUC felt that the opt out from the 48 hour working week had weakened the Directive.

  In the health sector, both sides of industry voiced concerns that the Directive and subsequent move to shift working is having a negative impact on Doctors' training and may impact patient care. Industry representatives also singled out the ECJ rulings on SiMAP and Jaeger for reducing flexibility and one highlighted the negative impact of the ECJ rulings on the provision of social care via live-in wardens in residential care homes.

Problems of Interpretation

  The Government has not experienced any major issues in interpreting the original Directive. However, since the original Directive was agreed, there have been a number of court cases interpreting the Directive in a way that we consider the Council of Ministers never intended and this has created some implementation issues. For example, the court judgment in relation to "rolled up holiday pay"—a practice where a payment is made in addition to the daily rate of pay to take account of statutory paid holiday entitlement. Generally most workers receive payment for annual leave when they take it. However, for certain small groups (eg agency workers who work for more than one agency on a regular basis and can work for as little as half a day at a time thus accruing the right to a proportion of four weeks leave—18 minutes per half day's work) it is a practical way of ensuring they receive payment for their holidays which they can take at a later date.

  Given that the courts tend to interpret the Directive restrictively, we would resist a new Directive that contained imprecise measures and lacked legal certainty. The UK Government would also like to see more Member State autonomy in how the Directive is implemented in individual Member States to reflect differing national circumstances.

  Social partners raised a small number of areas where they or their members have experienced issues in interpretation. The most commonly referenced were the derogations in Article 17 and the entitlement to paid annual leave. Most mentioned the issue of the ECJ rulings on inactive on-call time and compensatory rest. The CBI also added a request for clarity on whether the regulations apply per worker or per contract.

Priorities going forward

  As stated below in Question 9, the Government is keen to see a solution to the problems caused by the ECJ judgments of SiMAP and Jaeger, in an overall package that includes the retention of the individual right to opt out from the 48 hour working week. However, if Member States cannot agree such a package, the absolute priority of the Commission must be to resolve the problems caused by the ECJ rulings to Europe's health and emergency services.

  The overriding priority of industry representatives is to retain the existing right to opt out of the working time limits. It was also suggested that, given the lack of progress on revising the Directive and the "stress" on national health systems, the Commission should look to find a solution on on-call time and debate the other issues separately. Two Union representatives called for the opt out to be phased out with interim measures to tackle abuse, with one requesting a stronger Working Time Directive with more safeguards if the opt out was not phased out. In the health sector, the priority for union representatives was to ensure the Directive was implemented and enforced properly in all Member States to create a level playing field for all medical workers across the EU in terms of flexibility in the definition of working time and clarity over compensatory rest. They also call for no delay to the full implementation of the Directive for junior doctors, due in 2009.

9.  OUTLOOK

Please indicate any priorities in this subject area

Suggest any adaptations or amendments to the Directive, stating the reasons

Indicate any changes which are considered necessary to technical progress

Suggest any flanking measures at EU level that could be useful

  The UK has consistently underlined the need for precision and legal certainty over the laws regarding working time. We firmly believe that the UK has fully implemented the Working Time Directive through the Working Time Regulations 1998, as amended, and that the UK is fully compliant with working time law. Our priorities for this dossier remain the same: the retention of the individual opt-out, free from unnecessary burdens that could render it effectively unworkable; and a solution to the problems caused by the ECJ rulings on SiMAP and Jaeger.

  If Member States are unable to agree a way forward on all aspects of working time legislation as a package, the UK believes that the EU should aim to make progress step by step. The Commission should not allow difficulties on certain aspects of the Directive to delay finding a resolution to the problems caused by SIMAP and Jaeger. In certain countries these judgements are putting the health and security of EU citizens at risk and action to combat this should be a top priority.

  The UK firmly believes that Member States should be subjected to a reasonable level of scrutiny regarding the health and safety of all workers who work excessive hours. The UK is aware that some Member States use a number of different methods to allow longer hours working, such as implementing the limits of the Working Time Directive per contract or exempting entire categories of workers, rather than implement the opt out. We would oppose the imposition of a single approach upon Member States that have different traditions—a variety of approaches can be equally valid providing there is adequate protection against coercion and measures to guarantee health and safety. There is a strong argument for subsidiarity—Member States should be given more autonomy to implement working time legislation in accordance with their own practices and traditions rather than be forced to comply to a "one size fits all" approach, which is clearly impractical given the different labour market traditions of Member States.

  The social partners also raised a number of often competing areas where they believed the Directive could be changed to make technical progress. A majority of industry representatives want the Directive amended to solve the problems caused by on-call time being defined as work in the SiMAP ECJ case. A number also wanted the rigidity with which daily and weekly rest must be taken to be reduced as the lack of flexibility is causing problems for both businesses and public services. The introduction of a 12 month reference period without the requirement to agree it via a collective agreement or via a workforce agreement would allow greater flexibility for employers and workers.

  Although not a change to the Directive, industry representatives added their voices to the need to retain the opt-out. One also made a number of suggestions to protect worker choice such as preventing the opt out from being signed at the same time as the employment contract or from being part of the employment contract itself, and for information regarding a workers' right to withdraw their opt out to be part of the written opt out agreement itself.

  One industry representative called for the current Directive to be replaced with simple principles, clear wording and flexibility, given the lack of a prospect of agreement and the complexity of the current legislation.

  There is little appetite amongst UK social partners for any flanking measures at EU level. Of the few who responded on this question, it was felt that flanking measures would simply add to the already over complex legislation. Only Union representatives in the health sector thought that flanking measures could be useful (to provide clarification and guidance on aspects of the directive).

LIST OF UK SOCIAL PARTNERS ASKED TO CONTRIBUTE VIEWS

  ALVA (Association of Leading Visitor Attractions).

Association of Train Operating Companies (ATOC).

British Chamber of Commerce (BCC).

British Holiday and Home Parks Association.

British Hospitality Association (BHA).

British Medical Association (BMA).

British Retail Consortium.

Broadcasting Entertainment Cinematography and Cinema Union (BECTU).

Chamber of Shipping.

Chemical Industry Association.

Chief Fire Officers Association.

Civil Aviation Authority.

Confederation of British Industry (CBI).

CBI (Northern Ireland).

CBI (Scotland).

Construction Industry Federation (CIF).

Engineering Employers Federation.

European Centre of Enterprises with Public Participation (CEEP).

Federation of Small Businesses.

Forum of Private Business.

Hospitality Association.

Institute of Directors (IOD).

Local Government Employers (LGE).

National Health Service Employers.

Nautilus UK.

Oil and Gas UK.

Royal College of Nursing (RCN).

Recruitment and Employment Confederation.

Scottish Chambers of Commerce.

Scottish Trades Union Congress (STUC).

The Chief Fire Officers' Association (CFOA).

The Confederation of Passenger Transport.

The Freight Transport Association.

The Northern Ireland Committee of the Irish Congress of Trade Unions.

(NICICTU).

The Road Haulage Association.

Trade Union Congress (TUC).

UNITE Trade Union.

United Road Transport Union.

143   The Greek grey economy is estimated at over 20% of GDP, the Italian at 16-17%. This compares with an estimated 2% of GDP in the UK. Source: The European Commission, May 2004. Back