Select Committee on European Union Ninth Report


CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS

Health and Safety

5.1.  From the evidence we have received we do not find a clear causal link between working long hours and detrimental effects on health and safety in the United Kingdom. Nor have we found evidence of any particular relationship between the voluntary individual opt-out and adverse health and safety consequences. Common sense suggests that very long hours working over a sustained period of time could damage the health of workers. It might also put at risk others who come into contact with over-tired workers in their work environment. But we have seen no evidence quantifying how many hours would need to be worked over what period of time and in what type of employment for that risk to be significant. (paragraph 2.18)

5.2.  We recommend that the Commission should carry out detailed research in Member States, not only in the United Kingdom, into the possible relationship between long hours working and health and the safety risks for different categories of workers and for those with whom they come into contact in the working environment before decisions are taken on any modification of the Directive. (paragraph 2.19)

Competitiveness, flexibility and efficiency

5.3.  On balance, we conclude that the flexibility offered by the voluntary individual opt-out is an important element in preserving competitiveness, especially in view of the intense global competitive pressures now facing European business. We also consider that the structure of British business makes the voluntary individual opt-out particularly suitable for the United Kingdom. We therefore recommend that the voluntary individual opt-out should be retained, but kept under periodic review. (paragraph 2.36)

5.4.  At the same time, we recommend that Government, business and the trades unions should actively look for other ways of improving competitive flexibility so as to reduce dependence on long working hours wherever possible. (paragraph 2.37)

Work/Life Balance

5.5.  We note that the Commission review proposes to take account of the legitimate desire of many European workers to improve their work/life balance even though this aspect was not covered in the original Directive. We welcome the moves that our own Government has already made to strengthen workers' rights in this respect and to encourage more family-friendly policies. What has been done so far to improve opportunities for women is particularly important, although more attention needs to be given to the changing needs of family life and of those who care for the elderly and disabled. (paragraph 2.60)

5.6.  Nevertheless, these are complex issues which involve factors quite outside the original purpose and proper scope of the Directive, such as the provision of better child care and more help for those wanting career breaks or having to care for the elderly and the disabled. Revision of the Directive may provide some opportunities for stimulating further positive action within the overall framework of policy at the European level, but in our view that overall policy itself should first be examined to determine realistic priorities for action to which revision of the Directive might contribute. (paragraph 2.61)

5.7.  We also believe strongly that it is most important that the reasonable rights of those who wish, for whatever reason, to work longer hours should also be respected where extra work is available for them to do. (paragraph 2.62)

Application of the opt-out

5.8.  Though the allegations of abuse of the Directive that we have had in evidence are mainly anecdotal, apparently few in number and unsubstantiated, we believe the possibility of abuse must be taken seriously. We welcome the strong commitments given to us by the Government and the CBI to cooperate in stamping out abuses. We believe that firm action is needed to ensure that employees are properly protected and not subjected to coercion, whether explicit or implicit. If the present voluntary individual opt-out is to be retained, it is essential that all concerned should have confidence that it is being used properly and transparently. (paragraph 2.101)

5.9.  Among the basic safeguards, we recommend that the Directive should be amended to make clear that no documents inviting the signature of a voluntary individual opt-out should ever be sent or presented to prospective new employees at the same time as they are invited to sign a contract of employment. Any such opt-out documents should not be sent or handed to new employees for signature until at least 48 hours after they have signed any contract of employment. These opt-out documents should be accompanied by a clear and simple written statement pointing out the voluntary nature of the opt-out, including the right of the employee to revoke it at any time and without adverse repercussions. (paragraph 2.102)

5.10.  As a further safeguard, we suggest that consideration might be given to the possibility that every individual signing a voluntary opt-out should also be allowed a brief "cooling off" period after the date of signature within which they would have an absolute right to revoke the opt-out before it took effect. Any such right should also be clearly spelt out in the accompanying documentation. (paragraph 2.103)

5.11.  We are concerned to note evidence we have received indicating that various provisions of the Directive are unclear and may have been misapplied as a result. We urge the Commission to consult with Member State Governments about the need to make these provisions clearer by amendment of the Directive. (paragraph 2.104)

5.12.  We also recommend that the Government, employers' organisations and trades unions should, as a matter of urgency, devise more stringent and transparent methods of record-keeping and rules of inspection designed to detect and deter abuses in a way that would add the least possible burden of cost and bureaucracy to employers, especially small-scale businesses and voluntary organisations. (paragraph 2.105)

5.13.  Having put these arrangements in place, the Government should devote additional resources to improving surveillance to ensure that the Directive is properly applied, including arrangements for more pro-active checks by the Health and Safety Executive. (paragraph 2.106)

5.14.  In support of these legal and administrative changes, we recommend that the Government, employers' organisations and trades unions should be encouraged to cooperate in a publicity campaign to explain to employers and workers the purpose and implications of the Directive, and especially the rights of workers and duties of employers, in straight forward language and in an accessible form. (paragraph 2.107)

Reference Periods

5.15.  We acknowledge, on the one hand, a strong preference among employers' organisations for retention of the voluntary individual opt-out and, on the other, a strong preference by trades unions to remove the voluntary individual opt-out whilst retaining the right to extend working hours by collective agreements. We also note that longer reference periods would not necessarily suit all sectors, and would appear to be inappropriate in the case of junior hospital doctors. Nevertheless, we recommend that the Commission should give further consideration to the possibility of permitting longer reference periods where appropriate. (paragraph 2.125)

5.16.  We are not convinced that the requirement for collective agreement as an explicit condition of the extension of reference periods to 12 months is either appropriate or necessary, especially in the circumstances of the United Kingdom. We therefore recommend that the Commission should consider removing that requirement so as to enable reference periods to be extended to 12 months more widely. (paragraph 2.126)

Sectoral Variation

5.17.  We are unable, on the basis of the evidence received and in the limited time available to us, to reach any firm conclusion about the desirability of adding further sectoral exemptions to the Directive (with the possible exception of the medical profession with which we deal separately). But we note that much of the evidence we have received from employers' organisations suggests that the voluntary individual opt-out is the most practical way of accommodating sectoral variations and that this appears to accord with the view of the Government. We recommend that the Commission should consider carrying out further research on this aspect. (paragraph 2.133)

Autonomous Workers

5.18.  We are concerned over the apparent uncertainty over the definition of "autonomous worker" which has been brought to our attention in evidence and by the suggestion that the term "autonomous worker" is being interpreted differently in different Member States. We recommend that the Commission should examine the way that the term is being interpreted in Member States with a view to providing clarification through an amendment to the Directive. (paragraph 2.140)

5.19.  We further recommend that the Government should examine the merits and disadvantages of what we understand to be the position in the Netherlands whereby those earning more than three times the national minimum wage are automatically exempted from the provisions of the Directive. (paragraph 2.142)

Burdens on Small Organisations

5.20.  We have been impressed by the evidence we have received about the financial and administrative burdens of these regulations upon organisations with small numbers of employees. We hope that the consultation between Government and such organisations will lead to some relief of those problems. But we also urge the Commission to take particular account of them in their review and to examine the practice of such organisations in other Member States by comparison. (paragraph 2.146)

5.21.  We also recommend that the Government and the Commission should both take due account of the suggestion that organisations employing fewer than 20 employees might be exempted from the requirements of the Directive so long as their employees themselves have the right to opt-in to a maximum 48 hour working week if they wish to do so. (paragraph 2.147)

The Barnard Report

5.22.  The Commission's position on the disclosure of the Barnard Report is wholly unacceptable. There is no public interest justifying the non-disclosure of the Barnard Report. Nor do we consider that its disclosure would "seriously undermine" the Commission's decision-making process. [53] Quite the opposite. There is a clear public interest in the Report being published so that there can be a full and open debate on its content. We therefore strongly recommend that the Commission should publish the Barnard Report as soon as possible and make every effort to ensure that its findings are fully and accurately reported. (paragraph 2.150)

5.23.  While we commend Dr Catherine Barnard and her colleagues on their excellent work, we believe that the terms of reference of their Report were not sufficient to give an adequate reflection of this complex topic. We therefore recommend that more extensive studies, employing wider methodologies, should be carried out by the Commission across the EU, and not simply in the United Kingdom, to gain a deeper and more comprehensive understanding of the way in which the Directive is currently being implemented in Member States and to distil more solid conclusions before final decisions are taken on any changes to the Directive. (paragraph 2.153)

The SiMAP and Jaeger Judgments

5.24.  We are encouraged by the positive preliminary reports of the pilot schemes aimed at reducing hospital doctors' working time which are currently being carried out in the NHS. We hope that it will prove possible to extend schemes on these lines to all United Kingdom hospitals as a contribution towards the attainment of the requirements of the Directive without detriment to standards of patient care or medical training. (paragraph 3.44)

5.25.  We note, however, the unanimous evidence we have had from Government and the medical profession that it will be impossible for the NHS to comply with the extension of the Directive to junior hospital doctors by August of this year if the definition of working time in the SiMAP ruling is applied as it stands. (paragraph 3.45)

5.26.  We also note that there are differences of opinion over the feasibility of applying the principles underlying the SiMAP ruling in the longer term. We look to the Commission to produce proposals as a matter of urgency that would have the effect of deferring the implementation of the Directive for junior doctors until a satisfactory solution to the problems posed by the SiMAP ruling can be devised and agreed with Member States. (paragraph 3.46)

5.27.  We also urge the Government to continue to work closely with representatives of the medical profession and NHS management, as well as with the Commission and other Member States, in attempting to devise a common approach to the definition of working time for hospital doctors on-call duties which is consistent with the spirit of the Directive as interpreted in the SiMAP judgment whilst being workable in practice and to agree on a reasonable programme to phase in whatever changes are needed without detriment to standards of patient care or medical training. (paragraph 3.47)

5.28.  As we understand it from the evidence we were given, we believe more attention should be paid to the particular difficulties which the SiMAP judgment will cause for the United Kingdom because, of:

5.29.  We note the Minister's optimism about finding "a very sensible way which does not drive a coach and horses through the fundamentals of the Directive which is to provide proper protection for employees against working practices that are unsafe and unsound". Nevertheless, it is clear to us from the overwhelming evidence we have received that the effect of the interpretation of the Directive in the Jaeger judgment is perverse and wholly impractical to implement. (paragraph 3.49)

5.30.  In view of the extremely serious situation created by the Jaeger judgment, we call upon the Government to indicate as a matter of urgency how they propose to deal with the problem of doctors' working time and compensatory rest from the extension of the Directive to junior doctors in August 2004 until such time as a satisfactory solution can be found. (paragraph 3.50)

5.31.  In the meantime, we encourage the Government to continue their efforts with other Member States to convince the Commission that the serious practical implications of the Jaeger judgment for all Member States demand rapid and effective remedial action through an amendment of the Directive. (paragraph 3.51)

5.32.  We agree with our witnesses that the best solution would be to get rid of the automatic requirement for immediate compensatory rest completely. Ways should be found of providing compensatory rest within a reasonable time. (paragraph 3.52)

5.33.  We are also concerned by the possibility which has been raised with us that the SiMAP and Jaeger judgments might be applied to other sectors. We call upon the Commission to produce detailed advice on this possibility for consideration by Member States as a matter of urgency. (paragraph 3.60)

Final Conclusion

5.34.  On the central point raised in the Commission's consultation, we reiterate our conclusion that the voluntary individual opt-out should be retained. We make a number of recommendations for practical improvements in the way that the Directive operates. In the time available we have endeavoured to do justice to this important and complex topic. We believed it was important to submit our Report before this phase of the Commission's review was completed. We intend to keep the review of the Working Time Directive under close scrutiny and will wish to examine carefully any further report or legislative proposals that may be issued as a result of the consultation. In the meantime, we recommend that the House should debate this Report as soon as possible. (paragraph 4.1)


53   See Article 4 of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents  Back


 
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