Memorandum by the Trades Union Congress
(TUC)
1. INTRODUCTION
1.1 The TUC is the national trade union
centre. We have 71 affiliated trade unions representing nearly
seven million members.
1.2 We regard the Working Time Directive
93/104/EC (WTD) as a necessary health and safety measure. However,
the UK's "individual opt-outs" from the 48-hour average
limit on working time have effectively neutered the directive.
A further problem is that both the domestic regulations that govern
the use of the opt-out and the current enforcement regime are
too weak.
1.3 The net result is that the Working Time
Directive has so far failed to protect UK workers. This omission
has led to the UK retaining an entrenched long hours culture,
with an incidence of long hours working that is four times the
EU average and 16 times more than the Netherlands. UK long hours
workers suffer from a high incidence of all the ailments that
are associated with working excessive hours, such as heart problems,
stress and depression.
1.4 The European Commission is currently
reviewing certain aspects of the WTD and have rightly criticised
the current arrangements in the UK. In addition, the European
Parliament has adopted a report that not only echoes these criticisms
but also calls for the opt-out to be phased out.
1.5 The WTD is a health and safety measure
and must be reviewed as such. However, there are other negative
effects that stem from the persistence of widespread long hours
working in the UK and should be considered in parallel with the
EC review, namely:
— the UK's labour productivity record;
— the position of women in the labour
market;
— family life and children's upbringing;
— the development of a healthy work-life
balance;
2. THE HEALTH
AND SAFETY
CASE FOR
THE WORKING
TIME LIMIT
IS COMPELLING
2.1 The UK has a good general health and
safety record but this should not give rise to complacency. There
is compelling evidence that working more than 48 hours per week
is associated with a range of physical and mental problems.[11]
2.2 The previous Government tested this
proposition in their unsuccessful case against the Commission.
Despite this outcome, the current Government does not accept the
health and safety case for the 48-hour limit on weekly working
time.
2.3 All the evidence on the health and safety
effects of long hours points one way. A country in which four
million workers regularly work more than 48 hours per week is
one in which workers are seriously at risk.
3. PROBLEMS ARISING
FROM THE
USE OF
THE OPT-OUT
3.1 The widespread use of the opt-out in
the UK and the resultant long hours working have led to a high
incidence of work related stress, heart disease and other medical
problems. These poor health and safety outcomes are very costly.
For example, the Health and Safety Executive estimates that stress
related illness costs UK employers £1.24 billion per year.
Yet the financial cost of stress has not led employers to manage
excessive hours. This may be because employers bear the lesser
part (28 per cent) of the total cost. The remainder falls mainly
on the National Health Service.
3.2 As there is no properly enforced legal
limit on working time in the UK it is possible to identify cases
in which insanely long hours have been worked. For example, in
a recent fatal accident case involving a crane collapse the three
workers killed regularly worked more than 100 hours per week.
3.3 Turning to non-health and safety issues,
the persistence of long hours is holding back the achievement
of gender equality in the workplace. Widespread long hours working
in the "top jobs" reinforces the glass ceiling and the
gendering of manual occupations.
3.4 There is also a strong business case
against long hours. Some managers try to use long hours used as
a substitute for improving work organisation, investment and training.
UK full-time employees work the longest hours in Europe yet UK
labour productivity is just 88 per cent of the EU average, and
our ranking is 12th.
3.5 Many businesses are hampered by the
loss of productivity and increased costs caused by fatigue and
ill health associated with long hours. There is also very clear
evidence that long hours have a detrimental effect on the pace
of work and the incidence of errors.
3.6 The TUC is also concerned that there
is widespread abuse of the opt-out provisions. Our polling shows
that one in four of those who have signed an opt-out say that
they were not given a choice.
3.7 Pressure to opt-out comes in a number
of ways. The most common method is that workers starting new jobs
receive the opt-out form along with their starting details, with
a request that it should be filled in and returned. Workers in
this situation often feel that they have no choice but to comply
with the employer's demand.
3.8 The European Commission's Barnard report
found similar practices in two of its 13 case studies.
3.9 Both Barnard and the DTI's own studies
also report cases where the opt-out was simply compulsory.
3.10 In addition, the UK enforcement regime
is too weak. The Health and Safety Executive is primarily responsible
for enforcing the Regulations in Great Britain, but most of the
Regulations are only enforced "on complaint". In other
words, it is up to the individual affected worker to complain,
and no enforcement action will be taken otherwise.
3.11 It would be more effective if Inspectors
adopted the approach that is used for other health and safety
issues. The regulations should be enforced as part of a normal
inspection, or as part of what are known as "blitzes"—inspections
concentrating on a specific health and safety issue.
3.12 Turning briefly to the situation in
other EU countries, it is worth noting that some now plan to use
opt out in very limited ways. These new measures should certainly
not be mistaken for a significant move away from the regulation
of working time. For instance, the forthcoming German legislation
will allow the opt-out only for the on-call time worked by medical
staff on the employer's premises.
3.13 It should also be noted that many other
EU countries see no merit in using the opt-out even in such a
limited way. Finland has just decided that it can deal with the
implications of the on-call ECJ cases without using the opt-out.
4. WORK AND
FAMILY LIFE
4.1 The government has taken a number of
welcome steps to promote a better work-life balance. However,
these initiatives are hampered by the continuing long hours culture
allowed by the opt-out.
4.2 The effect of long hours on parenting
is a matter that causes the TUC considerable concern. A recent
report by the Joseph Rowntree Foundation found that long working
hours have a negative impact on families:
— Long hours for either fathers or
mothers are associated with less involvement in children's activities
and the frequent disruption of family activities.
— Four out of five mothers whose partner
works more than 48 hours want them to work fewer hours.
5. DEFINITION
OF WORKING
TIME IN
THE LIGHT
OF RECENT
ECJ CASES INVOLVING
HOSPITAL DOCTORS
5.1 The SiMAP and Jaeger ECJ
cases mean that on-call time spent on the employer's premises
must be counted as working time for the purposes of the WTD limits.
5.2 The TUC believes that any problems arising
from these judgments can be solved by collective bargaining. All
the sectors that are likely to be affected are heavily unionised,
and terms and conditions are determined by collective agreement.
5.3 The UK Government's evidence to the
Jaeger ECJ over-estimated the likely impact of the judgment.
The Department of Health are currently compiling more accurate
figures. No account has been taken of the fact that shorter hours
will lead to fewer doctors on sick leave, better labour productivity
and fewer medical mistakes.
5.4 The TUC therefore believes that it would
be undesirable to change the definition of working time. However,
the Jaeger judgment unexpectedly tightened the rules on
when compensatory rest for missed breaks must be taken. There
is room to look again at this point.
6. THE REFERENCE
PERIOD FOR
THE 48-HOUR
WEEKLY LIMIT
6.1 The TUC believes that the provisions
that allow the reference period to be extended by collective or
workforce agreements should continue.
6.2 There is certainly no need to slacken
the current arrangements. Many employers can already access an
automatic derogation to a 26-week reference period under article
17.2.1.
6.3 12-month reference periods are also
available to every UK employer via collective bargaining or workforce
agreements.
6.4 In any case, employers have overstated
the need for longer reference periods. There are indeed peaks
and troughs in long hours working in many industries, but these
fluctuations are of such an order that they could be easily managed
under the current arrangements.
Paul Sellers
Policy Officer
11 February 2004
11 A recent review can be found in "Working Long
Hours", Health and Safety Laboratory, HSE, 2002. See pps
19 and 24 for conclusions on the mental and physical effects of
long hours. Back
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