There appears to be no end to the controversy over working time rules.

Stephen Levinson looks at why

The Working Time Regulations were introduced into English law in 1998 implementing the Working Time Directive (93/104/EC).

From the beginning there was debate because the UK (and only the UK) decided to make use of the option in the directive allowing workers to choose to cap their working week at 48 hours or work longer hours.

The Trades Union Congress has been waging a campaign to persuade the government to alter the rules.

It claims there is widespread abuse and bullying, giving many workers little option but to agree to work longer than they want.

But the Confederation of British Industry and the government have been united in a wish to maintain the opt-out.

Two dramatic decisions of the European Court of Justice (ECJ) have caused a number of member states to rethink their position on the opt-out in certain sectors, and the European Commission published a review of the opt-out (COM (2003) 843) on 30 December 2003.

There was a short consultation period that ended on 30 March 2004, but even before it finished it has been revealed that a decision has been taken by the commission to take enforcement action against the UK over other aspects of its implementation of the directive.

The basic rule under the directive is that there should be maximum working week of 48 hours on average, including overtime.

The period over which the averaging is done (the reference period) is not more than four months, with a possibility of extending the period by collective agreement.

The UK adopted the opt-out, and regulation 5(1) of the Working Time Regulations 1998 (SI 1998/1833) states that a worker may agree in writing that the limit was not to apply, provided the employer complied with a number of requirements which were lifted straight from the directive.

The requirements were that up-to-date records needed to be kept which: identified who had opted out, set out any terms on which the agreement was based, specified the hours worked in each reference period, permitted the records to be inspected, and provided any inspector with such additional information as he might require.

It was also required that the agreement to opt out could either apply to a specified period or be for an indefinite period and that the agreement was terminable on seven days notice by the worker or such other period, up to a maximum of three months, as specified in writing.

The requirement to keep records caused many complaints by employers and the Working Time Regulations 1999 changed these obligations.

The rules about keeping records were replaced by a simple requirement for employers to maintain 'up-to-date records of all workers who carry out work to which (the limit) does not apply by reason of the fact that the employer has obtained the worker's agreement...

' to opt out.

In its review of the UK law, the European Commission found that it does not give workers the protections guaranteed in the directive.

No worker is supposed to suffer a detriment for refusing to opt out, but the commission noted and disliked the fact that it had become general practice to present the opt-out agreement when the employment contract was signed.

(In fact it is now common for the opt-out to be contained in a handbook or the particulars of employment.) The commission considered this vitiated freedom of consent by the worker.

The right of the worker to refuse the job on those terms or to negotiate was presumably considered unrealistic by the commission.

However, it does not devote lengthy reasoning to the point.

It states simply that 'freedom of choice is compromised by the worker's situation at that moment'.

The commission also took particular note of the relaxation of the obligation to record the number of hours worked.

The underlying health and safety basis of the rules requires, in the opinion of the commission, the need to know exactly how many hours each worker works.

The absence of these records makes monitoring compliance with the other provisions of the directive (for example, daily rest periods, breaks or weekly rest periods) impossible.

The commission goes even further and states that the way the directive has been transposed into law in the UK could in practice prevent workers from benefiting from certain rights laid down in the directive, which was certainly not the intention of the community legislature.

In SIMAP (C-303/98), the ECJ considered the meaning of 'working time'.

It held that all of the time when doctors were 'on call' when physically present at a health centre should be considered as working time whether they were providing health care during that period or not.

The court also held that if the doctors were not required to be physically present when on call then only the time actually linked to the provision of health care counted.

In the Jaeger case (C-151/02), the ECJ extended this interpretation by concluding that if the doctor is physically present but in fact performs no duties and is allowed to sleep during the time concerned, that too counts as working time.

Apart from giving the phrase 'sleeping on the job' a new meaning, these decisions created a shift in attitude in a number of member states towards the opt-out.

The prevailing approach in most countries had been that time spent not working when on call did not count.

The decision cannot be confined to the health sector (it also applies particularly to fire services and care homes), but that is where the impact has been heaviest.

It creates the obligation to change shift patterns radically and make use of many more staff.

In the medical sector, it is apparently accepted by the commission that as well as creating a huge extra cost burden for member states, there will not be enough trained staff to be able to comply with the law if the opt-out is not used.

Accordingly, many additional member states now wish to avail themselves of the opt-out and have made representations to this effect to the commission.

The TUC has reported that the Netherlands, Germany and Spain have notified the commission that they intend to make some use of the opt-out provisions, and that France, Luxembourg, Finland and Austria are also considering similar measures.

The commission has already taken a political decision to act against the UK over the way it implemented other aspects of the working time law.

As far as the 48-hour rule is concerned, this is still the subject of consideration for infringement proceedings, but it is improbable that it will survive for long in its present state.

However, because of the pressure from other member states, it seems unlikely that the opt-out will be scrapped completely.

As the commission is now linking the health and safety objectives underpinning the regulations to the additional objective of encouraging work-life balance, the impetus behind these quality of life issues will ensure that if the opt-out survives it will be in a format that has a great deal more red tape about it than is currently the case.

Stephen Levinson is head of employment at the London office of Maclay Murray & Spens