A review of the controversial Working Time Directive has been in the pipeline for a number of years. The second stage consultation paper, recently launched, seeks the views of the social partners on two alternative approaches to revamping the Directive. The approach will either be based on a narrow or a broader scope for review.

If a narrow approach is chosen, then the review of the Directive will be limited to:

  • Issues surrounding the definition of "on-call time". This issue has proved problematic in the context of the provision of on-call medical services and the financial implications of this. The CJEU previously ruled that time spent at the workplace and on the premises of the employer (even while asleep in a bed provided by the employer, as in the case of an on-call doctor,) constituted working time*. Among the proposals has been a suggestion to split on-call time into active and inactive on-call time. The ultimate goal however will be to relax the rules around what is "on call time".
  • A review of compensatory rest for missed breaks and the fact that Member States have a significant degree of flexibility surrounding this provision.

If the outcome of the consultation paper is such that a wider review is demanded, then other issues such as the following will be looked at:

  • Tackling excessive working hours with a view to achieving a better reconciliation of work and family life.
  • The issue of paid annual leave could be reviewed. This would be good news for employers in light of the adverse impact of the decision in the conjoined cases of Schultz Hoff and Stringer which found that employees can accrue annual leave while sick even during long term sick leave. Reviewing this aspect of the Directive would perhaps allow a means whereby a cap might be imposed on the number of weeks annual leave entitlement which a worker can accrue while on sick leave. This would reduce the current cost implications for the employer as a result of complying with the Stringer decision.
  • The issue of the opt out, as a number of Member States have opted out of some or all of the Directive's limitations on working hours.

Submissions on the second phase consultation are invited by 28 February next. Based on the replies received, the Commission will then prepare a legislative proposal to amend the Directive. Any legislative proposal would then need to be considered and agreed by the Council and Parliament.

Comment

This is not the first time that an attempt has been made to review and amend the Working Time Directive. In 2004 the process commenced but was abandoned as the EU Council of Ministers and Parliament could not reach agreement on the proposals given the difficult and contentious questions surrounding on-call time, what flexibility should apply to the timing of minimum rest periods and how to review the individual opt out from the 48 hour limit to the average working week.

The current consultation phase represents a renewed attempt to clarify these issues as a general consensus emerged that an overhaul of the Working Time Directive was needed. In order to achieve this overall objective however, a balance will have to be struck between the needs of employees who are seeking greater legal protection and employers who are striving for greater flexibility in the operation of the Working Time provisions.

* Landeshauptstadt Kiel v Jaeger [2003] IRLR 804