Legally and politically important
Cleared from scrutiny; further information requested; drawn to the attention of the Work and Pensions and the Business, Energy and Industrial Strategy Committees
Report from the Commission on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time
Article 24 of Directive 2003/88/EC
Business, Energy and Industrial Strategy
(38690), 8635/17 + ADD 1, COM(17) 254
23.1The 2003 Working Time Directive (WTD) establishes individual rights for every worker in the EU. It lays down mandatory periods of daily and weekly rest, maximum weekly working hours, breaks and annual leave entitlements. Although there have been several attempts to amend the Directive in recent years, none has been successful (see “Background” for more information).
23.2In April 2017, the European Commission published its latest five-yearly report on the implementation of the Directive. It also issued detailed legal guidance for national authorities on the implementation of the legislation in view of the extensive case law of the European Court of Justice. However, recognising the political difficulties in getting new legislation on working time agreed, the Commission shied away from making any formal proposals to amend the Directive.
23.3The Minister for Small Business (Margot James) submitted an Explanatory Memorandum on the Commission report in July 2017. She did not offer an assessment of the Commission’s new guidance on the Directive, or indicate whether current UK practices relating to restrictions on working time could change in light thereof.
23.4The Minister also did not refer to the implications of Brexit for UK adherence to the Working Time Directive. The Government has stated, elsewhere, that the EU (Withdrawal) Bill currently before Parliament “will ensure that the workers’ rights that are enjoyed under EU law will continue to be available in UK law after we have left the EU. This includes rights derived from EU law, such as the Working Time Directive and the Agency Workers’ Directive”. As we have noted elsewhere, the Government is seeking transitional arrangement for the immediate post-Brexit period during which the UK would likely remain under a legal obligation to apply EU employment law.
23.5It is unclear what the status of the Commission’s interpretative guidance on the WTD would be once the EU (Withdrawal) Act takes effect.
23.6The Working Time Directive is a cornerstone of EU employment legislation, and the European Commission’s new interpretative guidance is an attempt to ensure its uniform implementation across the Union in the light of a substantial body of case law.
23.7We are disappointed that the Minister did not provide us with a substantive assessment of the Commission’s guidance. We ask her to clarify what, if any, changes to the organisation of working time in the UK may flow from the document. We also ask the Minister to explain what the status of the Commission’s new guidance will be once the European Union (Withdrawal) Bill becomes law.
23.8In view of the non-binding nature of the report, we clear it from scrutiny in anticipation of further correspondence from the Minister in relation to these outstanding questions. We also draw the document to the attention of the Work and Pensions Committee and the Business, Energy and Industrial Strategy Committee.
23.9On 26 April 2017, the European Commission published its latest five-yearly report on the implementation of the Working Time Directive, accompanied by an “interpretative communication” with further guidance for Member States on how to implement and enforce the Directive. Both documents were prepared as part of a wider package of measures relating to EU social policy (the “European Pillar of Social Rights”), which collectively are intended to put the social policy aspects of the EU’s Single Market higher on the European political agenda.
23.10The current Working Time Directive (WTD) was adopted in September 2003, and sets the minimum standards for the organisation of working time across the EU. It replaced an earlier 1993 Directive (itself only amended once), with few changes.
23.11The WTD establishes individual rights for every worker in the EU, laying down minimum health and safety requirements for the organisation of working time. This includes mandatory periods of daily and weekly rest, maximum weekly working hours, breaks, annual leave entitlements and restrictions on specific patterns of work, such as night shifts. Crucially, the Directive sets a maximum weekly working time of 48 hours. This limit is an average which can be calculated over a “reference period” of up to four months.
23.12The Directive contains a number of derogations, permitting individual Member States to maintain more flexible working time regulations or even to disapply certain elements of the WTD altogether. Notably, article 22 of the Directive (known usually as the “opt-out”) allows Member States to permit individual workers to waive their right to a maximum working week of 48 hours. This derogation is widely used in the UK, which is one of only five Member States to allow it to be used irrespective of sector.
23.13The Working Time Directive has long been controversial in the UK. In 1993, the Government tried to block its adoption but failed to do so because the qualified majority rule was applied. Subsequently the Government tried—unsuccessfully—to have it annulled by the European Court of Justice, arguing that under the EU Treaties in force at the time the Directive should have been adopted by unanimity. Following this, the Government refused to implement the Directive, and the European Commission was in the process of bringing infringement proceedings when the new Government, elected in 1997, transposed the Directive through the Working Time Regulations.
23.14Over the past 14 years, there have been several unsuccessful attempts by the European Commission to amend the Directive to update its provisions. This has in part been driven by a perceived need to codify the numerous judgements by the European Court of Justice interpreting the provisions of the Directive.
23.15The Commission published its first set of amendments to the WTD in September 2004. These sought to restrict the use of the opt-out (for example by prohibiting employers from asking new employees to waive their right to 48-hour week during their probationary period), and to impose a maximum weekly working time limit of 65 hours even for employees who exercised the opt-out. The proposal also aimed to address problems that had arisen from then-recent judgements of the Court of Justice with respect to the definition of “on-call duty time” when calculating working time limits.
23.16The Commission’s proposed amendments were immediately highly controversial, mostly because the EU’s national governments in the Council were heavily divided among themselves on continued use of the opt-out. Several Member States wanted to abolish it altogether. The Council eventually reached a compromise on the proposal in June 2008, which would limit the use of the opt-out but permitting it indefinitely. However, the European Parliament did not accept this proposal, insisting that the opt-out should be phased out over a period of three years. The new Directive was eventually withdrawn in September 2009 after the Parliament and the Member States were unable to reconcile their positions.
23.17In March 2010, the European Commission began a new attempt to update the WTD, noting that there was “insufficient legal clarity” about some of its existing provisions. It also argued the Directive needed to be modernised to take into account the “fundamental changes that have taken place in working patterns”. In a consultation paper prepared under the Article 154 procedure of the Treaty, it asked the European social partners (workers’ and employers’ organisations) to jointly draft a new Working Time Directive.
23.18The social partners undertook several rounds of negotiations to agree on a new Directive, but ultimately failed to reach agreement, and in December 2012 the talks were abandoned. As a result, the Working Time Directive as it currently applies will remain un-amended since it was agreed in 2003, which in turn means it remains in substance mostly unchanged from the initial version of the Directive as adopted in 1993.
23.19As noted above, the Commission has not used the publication of its Pillar of Social Rights to propose amendments to the Working Time Directive. Instead, it has opted to issue a routine implementation report, as well as an “interpretative communication” which contains guidance for Member State authorities on enforcing the Directive in conformity with Court of Justice case law.
23.20The Commission publishes reports on the implementation of the WTD every five years, as it is mandated to do in article 24 of the Directive. In its latest report, the Commission concludes that “the large majority of workers in the EU are subject to working time rules that respect EU legislation”, and in many cases domestic rules “afford greater protection than what is required under the Directive”. However, it adds that the inadequate enforcement of the requirement to provide compensatory rest where minimum rest periods are shortened or postponed is “clearly the most widespread problem”.
23.21The Commission also noted that the UK was the only Member State to have carried out specific evaluations of the Directive. The first of these was the Government’s 2014 Balance of Competences review, which concluded that employers were most concerned about the “risk of losing the individual right to opt-out of the 48 hour maximum working week”. The second evaluation was a separate 2014 Government review of the Directive, which concluded that it was “difficult to assess whether there is any link between the introduction of the Working Time Directive and workplace health and safety in the UK.”
23.22The main innovation in relation to the Commission’s five-yearly report is that it has appended new, and extensive, legal guidance on the way the Directive should be implemented in light of the case law of the European Court of Justice.
23.23The Minister for Small Business (Margot James) submitted an Explanatory Memorandum on the Communication on 6 July 2017. She describes the accompanying legal guidance on the interpretation of the Working Time Directive only as a “summary of CJEU case law” on “complex issues such as holiday pay, the interaction between annual leave and sick leave, on-call time, night work, ‘opt-out from the maximum 48 hour working week’”. The Minister makes no attempt to assess the implication of the legal guidance, in particular with respect to any differences in the interpretation of the Directive between the Commission and the Government.
23.24The Commission’s report and interpretative guidance on the implementation of the Working Time Directive have no immediate policy or legal implications from the UK, as they are not legally binding. However, we are disappointed that the Minister confined herself to a brief summary of the purpose of the interpretative guidance without offering any assessment of the merits of the Commission’s interpretation of the Directive.
23.25The Minister’s Explanatory Memorandum offers no clues as to the Government’s position on the Commission’s interpretative guidance of the Working Time Directive. We are therefore unable to judge whether the Commission’s guidance should be seen as authoritative in the UK, at least until the UK ceases to be a Member State of the EU. We have asked for clarification from the Minister as soon as possible about her Department’s assessment of the guidance, whether the UK will apply the Directive in line with the Commission’s interpretation, and what changes to current practices that might entail.
23.26With respect to the implications of Brexit, we have taken note of the Government’s European Union (Withdrawal) Bill and the accompanying factsheet on workers’ rights, which provides further detail on the Prime Minister’s pledge to “protect and enhance” EU-derived employment legislation. The Withdrawal Bill, in its current form, would “preserve” EU law contained in Directives already transposed domestically on “exit day”. The Government has explicitly stated this will cover the Working Time Directive, although the status of the new interpretative guidance is unclear. There are, in any case, indications that the EU will insist on continued UK adherence to EU employment legislation as part of the Government’s “implementation period” post-Brexit.
23.27In view of the non-binding nature of the report, we clear it from scrutiny in anticipation of further correspondence from the Minister in relation to these outstanding questions. We also draw it to the attention of the Work and Pensions Committee and the Business, Energy and Industrial Strategy Committee.
281 on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time.
282 Document C(2017) 2601: on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time.
283 submitted by the Department for Business, Energy & Industrial Strategy (6 July 2017).
284 Department for Exiting the EU, ““ (June 2017).
285 The European Commission report is available here. The legislation is on the organisation of working time.
286 We have considered the other elements of the Pillar of Social Rights package elsewhere in this Report.
287 See ““, p. 2. No abstentions or votes against are recorded.
288 See . This amendment notably removed a number of sectoral exemptions from the 1993 Directive, including doctors in training.
289 The earlier legislation was . It was adopted using the legal base for health and safety policy (then-article 118A in the Treaty), where qualified majority voting applied. As a health and safety measure, it was not subject to the UK’s opt-out from the “Social Chapter” of the Maastricht Treaty.
290 The other Member States to allow the opt-out as a general rule are Bulgaria, Cyprus, Estonia and Malta. Twelve other Member States permit the opt-out only in sectors where there is extensive use of on-call time, principally in healthcare. The other 11 countries do not permit use of the opt-out at all. See for more information the 2017 Implementation Report on the Working Time Directive, p. 36.
291 The Government argued that working time was not a health and safety issue, and as such the legal base used (then on occupational health and safety), which required a qualified majority in the Council, was unlawful. The Government argued the Directive should have been adopted under or , both of which required unanimity (see , United Kingdom v Council).
292 European Commission press release, ““ (16 December 1997).
295 The Court had held that on-call duty performed by a doctor when he or she is required to be physically present in the hospital must be regarded as working time. See judgements in C-303/98 (the SIMAP case) and C-151/02 (the Jaeger case). The Commission’s amendments, had they been adopted, were intended to reinstate what had generally been understood as the implications of the Working Time Directive for on-call duty before these judgements. See for more information paragraphs 18 and 19 of the Commission’s .
296 A note prepared by the Dutch Presidency on the proposal in November 2004 showed that the UK, as well as Germany, Estonia, Latvia, Malta, Poland, Slovenia and Slovakia, wanted to maintain the opt-out as it still stands in the Directive. On the other hand, France, Spain, Belgium, Lithuania, Finland and Sweden supported abolishing the opt-out. See (9 November 2004).
297 Even this compromise was only a qualified success. Belgium, Cyprus, Hungary, Malta and Portugal abstained, and Spain and Greece voted against. See .
298 See on 17 December 2008 (P6_TA(2008)0615).
299 See for more information, “ “ (May 2009).
300 European Commission (COM(2010) 106), ““ (24 March 2010), p. 2.
302 Under the Article 154 procedure (which applies only to social policy initiatives), if the social partners reach an agreement, a new Directive can be adopted by the Council following consultation of the European Parliament rather than through co-decision.
304 While it does not say so directly, it can be inferred from the new guidance that it does not believe any new Directive would be acceptable to both the European Parliament and the Member States: “The various consultation processes also showed awareness among many stakeholders of the difficulty of coming to an agreement on a revised Directive which would satisfy all parties’ position and that would allow for a balanced result”.
305 For more information on the previous implementation report on the Working Time Directive, published in December 2010, please see the ESCr .
310 submitted by the Department for Business, Energy & Industrial Strategy (6 July 2017).
313 Prime Minister Theresa May, ““ (17 January 2017).
314 Section 2 of the European Union (Withdrawal) Bill.
315 Speech by Prime Minister Theresa May (Florence, 22 September 2017).
1 December 2017