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You are in: Home Page | About Thompsons | Information and Resources | LELR Issue 8

Issue 8 (February 1997)

Contents

School meals staff win equal pay
Compensation formula
£28,500 race bias award not excessive
Employer must give maternity rights guidance
Time limit runs from date of last act of discrimination
Put the boot into discrimination: judgement of Towering proportions
Union reps the best
Stretching the meaning of time
Bugging and burgling - proposed new powers would make them legal

Stretching the meaning of time

DTI Consultation Document on Measures to Implement the Working Time Directive

On 6 December 1996 the Department of Trade and Industry published a Consultation Document on measures to implement the Working Time Directive in the United Kingdom. The deadline for responses is 6 March 1997.

This means that the UK will not pass legislation to implement the Directive before March. It is quite possible that the necessary legislation will not be passed this side of the General Election.

The Consultation Document states that "at the end of the consultation period, the Government will take stock of the position in the light of responses received. Implementing legislation will be drafted and the Government will consider whether there needs to be any further consultation before implementation measures are put before Parliament" (para 1.5).

The Government plainly intends to adopt a grudging and minimalist approach to implementation: the same approach which created such legal difficulties over the Acquired Rights Directive. The Government intends to pass Regulations as a token implementation of the Directive, intending to repeal the legislation if it succeeds in persuading the other EU countries that the Directive should not apply to the UK.

This approach runs through the proposals. The Government seeks to implement in a way which grants minimal rights and involves minimum disruption to existing legislation.
This article highlights some of the main features of the Consultation Document's proposals.

No substantive rights

The Consultation Document does not propose substantive rights for workers which can be directly enforced against their employers. It does not propose statutory rights to breaks, rest periods, holidays etc.

It proposes merely that workers should not suffer detriment or dismissal for asserting their entitlements. A worker, for example, would not be granted a right to insist on 4 weeks paid leave, but if he asked for leave, he could not be sacked or disciplined for doing so.

If the employer refuses the leave, the only remedy which the Consultation Document seems to suggest is for the worker to defy the employer, take the leave and have the right to a remedy if the employer takes action. This is ludicrous and would not amount to proper implementation.

Workers

The Government tries to limit the application of the Directive to employees, even though the Directive covers 'workers', which should include anyone who works under a contract to provide services personally.

Excluded sectors

The Government tries to draw the excluded sectors as widely as possible so that anyone in the transport sector is excluded, even 'retail staff working in airports'. This is unsustainable.

Collective agreements

Many of the provisions of the Directive may be modified by collective agreements or 'agreements between the two sides of industry'. The Consultation Document suggests that agreements between the two sides of industry could be reached with elected representatives, without any guarantees of independence or representativeness, and without any mechanism by which those representatives would be accountable to those they are supposed to represent.

This takes no account of the European Commission's challenge to the role of elected representatives in the Collective Redundancies and Transfer of Undertakings Regulations 1995 and the lack of safeguards in those Regulations (see Issue 1 of LELR: Employers: duty to consult; and Issue 4: UK Government could face Euro fines over Consultation Regulatuons). It appears to ignore the proper interpretation of 'the two sides of industry' which must mean a higher level than an individual employer and individual employee representatives.

Breaks

It is suggested that legislation need only provide for a five minute break which can be taken at the workstation.

Holidays

The Government suggests that employees could be required to work 48 (or 49) weeks in any year before qualifying for any statutory paid leave.

Overview

These are just some of the areas where the proposals do not appear to implement the Directive. The overall structure of the proposals is fundamentally flawed. It does not allow for effective enforcement by workers. Indeed, enforcement by workers may not be enough on its own.

Most other EU states provide for enforcement through a labour inspectorate. A combination of individual rights and effective enforcement by an agency or inspectorate seems the most appropriate model.