Opt-out stays in, but signatures should stay out, says EC

Scottish law firm MacRoberts says companies should draft a simple legal form that workers can sign if they agree to work more than 48 hours a week.

This will help pave the way for potentially controversial changes designed to stamp out abuse of the Working Time regulations. MacRobertsí employment lawyer Katy Wedderburn points out that the European Commission wants to tighten, not scrap, the current rules that allow workers in Britain to opt-out of Europeís ì48 hour weekî.

Currently there is nothing to prevent employers incorporating the opt-out from the 48 hour week as a clause in the written contract. However, because of this some workers may unwittingly agree to work longer than the normal maximum when they sign their employment contracts.

The European Commission wants employers to separate opt-out information from the body of the contract to make a distinct line between the contract and the request that the worker signs an opt-out. ìWhat theyíre worried about is that thereís been a lot of concern, particularly from the trade union side, that employers were more or less requiring workers to opt-out, although the whole issue is supposed to be based on personal choice,î Mrs Wedderburn said.

ìThe new rules involve more bureaucracy in terms of record-keeping, but on the other hand thereís a fairly simple practical solution if employers just ask workers to sign a separate form. Whilst there will inevitably be those that say the opt-out should be abolished altogether overall, the proposals are likely to be viewed as relatively good news for employers and for those individual workers who appreciate having freedom of choice on an issue like this.î

The new opt-out proposals, which are currently being reviewed by the European Council and European Parliament, will also require workers to renew their consent to the opt-out at least every year. Workers who agree to it must still work no more than 65 hours in a week, unless there is a relevant collective agreement allowing this. Consent must be in writing, and in some cases unions can collectively agree or veto opt-outs by sector or workplace.

Importantly, employers need to keep records of actual hours worked in case they are required to produce these for the relevant authorities.

The European Commission believes its proposals meet the main aims of protecting workersí health and safety, allowing business flexibility and promoting the so called work/life balance.