As Chapter demonstrates, historically the UK’s industrial relations system exhibits only a few areas of specific regulation. The voluntary nature of the British system witnessed a reliance on the negotiation of voluntary agreements over pay and conditions of employment and working time arrangements in particular (see Clark, 2000 and Edwards, 2003 for a general discussion of voluntarism).
The 1999 Working Time Regulations provide one of the first serious attempts to provide for the regulation of hours at work. However, the voluntary and unregulated nature of the British industrial relations system remains significant. Currently, the UK’s application of the EU working time directive illustrates the pervasive nature of voluntarism via the inclusion of opt-outs that allow employers – sometimes unilaterally, sometimes in negotiation with trade unions – to regulate working hours as they see fit.
The UK’s working time regulations provide the following working time rights for all employees:
One aim of the working time regulations that remains unfulfilled is a reduction in the effects on employees, of all grades, of the burden of the UK’s previously unregulated work culture. The Department of Trade and Industry recently reported that 16 per cent of workers work 60 hours a week in comparison to 12 per cent in 2000 (see Financial Times, 30 August 2002) with 4.5 million workers working more than 48 hours per week.
Comparatively, British working hours are the longest in Europe and remain so even in face of the provisions contained in the Working Time Directive (see OECD, 2002). The long-hours work culture prevalent in the UK has resulted in the emergence of workplace stress as a major issue for British employers, with work overload often cited as the main cause of stress. The magnitude of the long-hours culture and workplace stress was recently demonstrated by a survey of 5000 employers which found that while 80 per cent of the sample felt vulnerable to possible legal action over workplace stress, 66 per cent of the sample had no stress policies in place. In 2001, over 6000 firms paid an average of £51 000 in damages for workplace stress; this figure represents a twelve-fold increase on the number of employees who successfully sued their employer for stress compared to 2000 (Work Stress Management 2002).
An employer cannot require employees to opt-out of the provisions listed below:
Unlike other EU nations, the British government provides employers with a series of exemptions and also allows employers to seek voluntary opt-outs from the 48-hour working time rule, although not the other provisions within the working time directive. The effect of opt-out provision is that many employers ‘ask’ their employees to waive this protection against what has become known as ‘the long-hours culture’. The opt-out provision allows employers to exclude workers provided for by the regulations, whereas the exemptions negotiated by the British government exclude workers in several sectors of employment and in several job types from the regulations completely. Specific categories of worker exempted from the regulations include:
The last category represents a catch-all mechanism that covers many white-collar workers who have some measure of autonomy over how and when they perform their work. Junior doctors have voiced strong opposition to their exclusion from the regulations and the British Medical Association has negotiated reductions in the length of their working week. Equally, school teachers in England and Wales are currently campaigning for a 35-hour working week to bring them into line with their colleagues in Scotland.
The EU Commission is reviewing the UK’s opt-out provisions in 2003 and it is likely to be made unlawful. If this is the case, it will remain possible to work beyond the 48-hour rule as long as the 17-week average is not greater than 48 hours. In 2002, after a submission by the Amicus trade union, the EU Commission began legal proceedings against the UK in respect of the failure by the British government to implement the Working Time Directive correctly.
The Amicus trade union cited several areas of complaint in their submission to the EU Commission; these included the exclusion of night-time overtime from the calculation of normal working time, failure by employers to measure and record overtime work beyond normal working hours and the failure of some employers to enforce worker entitlement to breaks and holidays (see Financial Times, 29 April 2002).
The regulation of working time in the UK demonstrates the partial nature of an apparently inalienable right – the provision of opt-outs creates voluntary exclusion and illustrates the persistence of aspects of Britain’s voluntary industrial relations system. In contrast to this, the exclusion via exemptions of many groups of autonomous workers renders working time unregulated in several sectors of employment.
Further, low-paid workers who earn only the basic national minimum wage per hour are in effect forced to sign opt-outs to earn a living wage. Lastly, young workers over 16 but younger than 18 are beyond the regulations and covered by the Young Workers’ Working Time Directive, which is similar to the regulations for older workers but provides for better rest breaks during working time.
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