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Who needs the Working Time Regulations?

25 Jan 2018 By Miriam Kenner

A life of servitude awaits us all if we ditch the EU’s flagship employment legislation, say critics – but some are less concerned

This year marks the 20th anniversary of the Working Time Regulations (WTR). It’s arguably the most important piece of legislation concerning the way we employ people in the UK. And yet it is so taken for granted that its flagship birthday will pass largely unnoticed.

The legislation – which emanates from the EU Working Time Directive – gives UK workers the presumption of a maximum 48-hour working week, a right to rest breaks at work and paid annual holiday. These are fundamentals of working life for British employees, though the WTR was initially resisted by the Conservatives, and successive governments have bristled at its implications.

Now, it faces perhaps its toughest challenge to date. In December, newspapers reported that Michael Gove and Boris Johnson were among members of the cabinet calling for the WTR to be scrapped after Brexit. They are said to have broad support in the Conservative Party, including among influential figures such as Jacob Rees-Mogg and secretary of state for international trade Liam Fox, who has described the regulations as a ‘burden’.

A plot to end the WTR has been officially denied, and conflicts with Theresa May’s stated promise to preserve employment protections when the UK leaves the EU. But there are many who think the rise of unregulated gig economy roles, and the potential for new employment statuses to recognise the new economy, mean the legislation may need to be rethought in future. People Management explains the background – and what might happen next.

What do the regulations mean in practice?

The legislation says workers in the UK can work no more than 48 hours a week on a 17-week average. Under-18s cannot work more than eight hours a day and 40 hours per week. It grants a mandatory right to paid annual leave of at least four weeks, including bank and public holidays, and a minimum 20 minutes’ rest in any shift lasting more than six hours.

But many workers are excluded, such as those in jobs that require 24-hour staffing, the Armed Forces, emergency services and domestic servants, as well as those where working time is ‘unmeasured’ and essentially within the worker’s control. Employers can ask workers to opt out of the WTR at any point.

Many are willing to opt out; for example, to ensure they receive overtime pay. But as no one can at present opt out of restrictions on working hours for night shifts or statutory rest breaks, repealing the WTR would allow more flexibility over shift patterns, affecting night workers, for example. 

When it comes to holiday pay, the UK has already gone beyond EU law. The Labour government amended existing regulations in 2007, adding a further 1.6 weeks’ annual leave entitlement to a maximum 28 days for a five-day-week employee.

Can the government scrap the regulations?

Not until the country leaves the EU, and even then it depends on the nature of Brexit, says Adam Lambert, partner at Kingsley Napley: “The closer the deal is to a single market, the less likely it is that the UK will be able to drop the directive, and therefore the WTR.” 

The ‘great repeal bill’ will enshrine legislation including the WTR in UK law after Brexit, but does not prevent it being amended over time. And if the European Court of Justice – whose guidance Britain may be required to follow, depending on the deal secured – begins issuing case law UK politicians find restrictive, the regulations may become an “easy target” for repeal, adds Lambert.

What would happen if we didn’t have the WTR?

Charles Cotton, senior reward adviser at the CIPD, says removing the WTR would provide greater scope for some individuals to work for longer and earn more. However, given that it’s already possible to opt out, most would see relatively little change. 

Whether employees’ hours were altered would depend largely on demand from employers and how concerned businesses were about the impact on health and safety, he says – and productivity has to be considered too.

“While some employees may be able to work for longer and earn more, they could also see their pay cut if holiday pay goes,” says Cotton. “The key to improving the UK’s productivity is not for employees to work more hours but to work more smartly, which involves looking at how work and jobs are designed.”

Emma Bartlett, partner at Charles Russell Speechlys, says removing minimum paid holiday and rest breaks would “contradict the government’s policy of improving employee wellbeing”, adding: “The WTR’s fundamental purpose is to improve health and safety at work, so that would be a step back for the UK.” In practice, she says, personal injury actions could skyrocket without important safeguards in place. 

What’s the most likely outcome?

Employees already feel overworked, says Bartlett, and the UK ranks as one of the longest hours cultures in the western world. The right to paid time off is seen as sacrosanct, and burnout awaits those who are forced to work around the clock.

But it seems likely that after floating the idea, some cabinet members will revisit elements of the WTR in the name of increasing flexibility and lowering the cost of employment. Ultimately, this battle may still be fought in the House of Commons – but all parties will be mindful that workers equal voters, and taking away holiday is surely the biggest vote loser of all.

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