TLNT | OCTOBER 13, 2021

By Lakshmi Raj, Co-founder and co-CEO at Replicon

How Will Brexit Impact the Working Time Directive?

On the 1st January 2021, when the UK officially left the European Union, they gained the power to make changes to employment law including the Working Time Directive (WTD). The European directive of working hours dictates protective minimums and maximums on the employee work week, break times, holiday pay, and more.

Some argue that Brexit is the perfect opportunity to reform or even repeal the WTD. Concerns include the possibility for individual employees to abuse the current system, as well as a lack of opportunity for millions of workers to earn overtime wages. But even these claims are debatable, considering that many individuals can opt-out of the directive and work more hours if they prefer.

Implication of Brexit on European Directive of Working Hours

The current European directives are designed to provide workers with a set of basic rights which will operate as minimum standards regardless of the terms of an individual contract or a collective agreement negotiated through a trade union. These rights include:

  • Weekly working time: the current directive restricts workers from working more than 48 hours per week. This is calculated by taking the average of hours worked over a 17 week period.
  • Paid Holidays: workers have the right to take 28 days of paid holiday per year. These holidays may include public holidays;
  • Rest periods:for every six hours worked, workers get at least 20 minutes of break.
  • Specific protection of night workers: any employee working three or more hours between 11pm and 6am are recognized as night workers. The working hours of night employees should not exceed more than eight hours.

The new regulation could scrap the 48-hour limit on the working week and introduce new rules on rest breaks and changes to how holiday pay – without lowering the standards of workers’ rights. There is an exception on the 48-hour work limit for employees working in the armed forces, emergency services, police force, security and surveillance teams, domestic servant in a private household, seafarer, sea-fisherman, worker on vessels on inland waterways, and managing executive where working time is not measured and the individual is in control of their decisions.

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How Likely are Changes to Working Time Directive?

With the new Employment Bill expected to be published later this year, employers are justifiably concerned about what is best for business. They should bear in mind that businesses are built by workers; and acting in their best interests is a far smarter practice than leaving them unprotected. What should businesses expect if the UK working time directive is rescinded, amended, or simply left alone? Let’s look at some options.

A complete repeal – Unsurprisingly, workers in the UK are not overly supportive of scrapping a directive that ensures paid holidays, minimum working hours and rest breaks. Putting these and other entitlements at risk could potentially invite the exploitation of workers in vulnerable positions – shifting the balance of power significantly in favor of businesses, benefiting them while simultaneously diminishing workers’ rights. After all, a disenfranchised worker is an unhappy worker and an unhappy worker is always going to affect the bottom line. Even without referencing the countless studies proving that happy workers are more productive, it’s common sense that a little respect for a work/life balance goes a long way. Employee health, wellbeing, and safety also factor heavily into this – lowered stress, better sleep, higher quality of service, and decreased accidents benefit not only workers but employers as well.

Adjusted as necessary – “Amended” can mean many things, but not all changes are necessarily harmful. For example, the WTD entitles employees who only work part-time to the same holiday pay as a full-time employee, depending on when they time their leave. This can create extra strain on businesses and introduce arbitrary, unnecessary discrepancies. Calculating each employee’s pay rate during annual leave is also notoriously complicated, requiring compulsory and voluntary overtime, incentive bonuses, and results-based commission payments to be taken into account in order to determine the precise amount. An infamously complex initiative, some may find amendments to the WTD a welcome change.

No change – Keeping the status quo can also have its benefits, preserving the advantages of having neighboring regions observe the same or similar labor laws, especially when it comes to the exchange of workers living in the EU or UK. Leaving the directive untouched could also ensure a better trade relationship with the EU, as the closer the UK is to EU policies, the easier it will be to grant them full market access. Ultimately, erring on the side of worker safety and health is generally regarded as a smart business practice, and with these considerations already built into the Working Time Regulations, the work is already done.

Whatever be the case, organizations are required to keep accurate and detailed records of the employee hours. If employees want to opt-out of the 48-hour working time restriction, copies of the opt out agreement must be saved to support any claim brought before the Employment Tribunal. Failure to keep proper records is considered a criminal offence punishable by a huge fine.

With nothing set in stone, the future of the United Kingdom’s labor law is anyone’s best guess. Pulled in both directions, the Working Time Directive after Brexit is an important piece of legislation – and keeping track of its status in these uncertain times can help businesses do their part by putting processes and systems in place that offer the flexibility to incorporate change. Do you have any thoughts on how this might play out? We’d love to hear it! Tweet us @Replicon and let us know what you think.

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