EU working time directive

Working time is one of the most important areas of employment where the EU has intervened through legislation to improve employment conditions.

The 1993 Working Time Directive (WTD) on aspects of the organisation of working time was a breakthrough which changed employment law and set a maximum 48-hour working week.
Original Working Time Directive full text
Consolidated EU legislation-93/104/EC (original WTD) and subsequent proposed amendments

What is in the WTD?

Directive 93/104/EC lays down provisions for a maximum 48 hour working week (including overtime), rest periods and breaks and a minimum of four weeks paid leave per year, to protect workers from adverse health and safety risks. It applies to all sectors of activity, both public and private. A number of areas, such as air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and doctors in training, which were exempt from the 1993 Directive, were brought within its scope in an amendment agreed in 2000. The measures to implement these new categories were to have been put in place in Member States by 1 August 2003 (1 August 2004 for doctors in training).

Why is WTD needed?

The link between long working hours and health and safety is well-established. Research has shows that work-related fatigue increases with the number of hours worked. Fatigue and loss of concentration cannot be avoided after a certain period of time and the risk of industrial accidents increases during the final hours of work.

Exclusions

There remain a number of categories of worker who are excluded from the Directive:

• Managing executives or other persons with autonomous decision-making powers
• Family workers
• Workers officiating at religious ceremonies in churches and religious communities.

The main provisions stated in the WTD were to ensure that workers enjoyed:

• a maximum 48 hour working week averaged over a reference period;
• a minimum daily rest period of 11 consecutive hours a day;
• a rest break where the working day is longer than six hours;
• a minimum rest period of one day a week; and
• a statutory right to annual paid holiday of 4 weeks;
• night working must not exceed eight hours a night on average

Normal hours of work for night workers must not exceed an average of eight hours in any 24-hour period. Workers shall be entitled to a free health check-up before being employed on night work and at regular intervals thereafter. Anyone suffering from health problems connected with night work must be transferred, wherever possible, to day work.

How is working time defined?

The 1993 Directive defines working time as "any period during which the worker is working, at the employer's disposal and carrying out his activities or duties, in accordance with national laws and/or practice”. A rest period is defined as “any period which is not working time". The directive does not allow for any interim category.

In 2000 and 2003, the European Court of Justice (ECJ) ruled on two cases which involved the definition of working time. Both cases turned on whether time spent on call constituted working time, and both concerned the health care sector, the SIMAP case in primary health care and the Jaeger case in hospitals. In both cases the ECJ ruled that time spent on call should be regarded as working time.

Opt-out from the directive

Article 18 of the 1993 Directive allows Member States not to apply the maximum working week of 48 hours if a number of conditions are complied with. It was negotiated by the UK during the process of adoption of the 1993 Directive. The opt-out is not specific to the UK, but the UK remains the only country to make widespread use of its provisions.

The conditions for the opt-out are:

• The worker must agree to work more than 48 hours a week
• No worker should be disadvantaged by deciding not to opt-out.
• The employer must keep up to date records of all workers who carry out such work
• These records must be made available to the competent authorities, who can restrict working hours above the maximum for health and safety reasons.

The situation in the UK

The main characteristics of the system governing working time in the UK have not really changed since the Directive was introduced, largely due to the opt-out.

Latest figures show that about 16% of the workforce currently works more that 48 hours per week, compared with a figure of 15% at the beginning of the 1990s. About 8% of the workforce say they work over 55 hours per week, 3.2% over 60 hours per week and 1% over 70 hours per week. The UK is the only Member States where weekly working time has increased over the last decade.

Many (approximately 46%) of those that say they work over 48 hours are in managerial positions and are covered by the exemption relating to managers.

Therefore the number of workers that actually require an opt-out is quite limited.