BEERG Newsletter - EU: Need to rethink working time laws

In last week’s issue we drew attention to the package of documents published by the European Commission on the current state of the law when it comes to working time. The package comes in three parts. A Report to the Council and the Parliament on the state of working time laws across the EU. A detailed Staff Working Document backing up the report. And a Communication on the case law on the Court of Justice of the European Union (CJEU).

At the outset, it needs to be said that taken together the three documents are an excellent piece of work, making clear where the law on working time in the European Union stands today. The staff working document and the guide to the CJEU case law are both superb resources for anyone who is concerned with the management of working time in their organisation. 

Not only that, but they also recognise that the Directive was written over 30 years ago in a very different world of work. To quote (at length):

The 1993 Directive came into force almost 30 years ago, in a society where, overall, employment relationships were more homogeneous and work organisation more standardised in the common ‘9 to 5’ working day. However, over the past decades, working time regulation has been increasingly confronted by new forms of employment and new ways of organising work, through the rise of e.g., remote work, mobile work, on-demand work, platform work or multiple employment.

These changes have been brought about and/or accelerated by the impact of digitalisation on the economies and societies of the EU. Indeed, digital transformation has further enabled more flexible working arrangements, addressing both workers’ aspirations for work-life balance and well-being at work and businesses’ search for increased productivity and agility in a globalised economy.

The Working Time Directive is therefore being implemented in a context marked by a new range of opportunities and risks. Flexible employment may lead to more use of the Directive’s derogations. Digitalisation is blurring the distinction between work and rest, and enables an increased fragmentation of work, both with regard to location and to time. At the same time, technology creates new possibilities for monitoring working time.

It seems to us that these three short paragraphs go to the heart of the matter. The Working Time Directive is an industrial age piece of legislation in a digital world, not to mention a world that is going to be shaken further by Artificial Intelligence. 

Of course, over half the workforce still leave home every morning and “go to work”. There are millions of workers who cannot work from home. Even if you can order a restaurant meal to be delivered to your door, someone in some kitchen still has to cook it. Hospitals still need skilled and committed personnel. Hotels have to be cleaned. Factories need workers. Trucks need to be driven. For such workers the Working Time Directive remains relevant and important with its maximum working week, daily and weekly rest periods, and protections for those who work at night. 

But there are increasing numbers of workers for whom “industrial” working time legislation is an anachronism. Whether working remotely fulltime or working in a hybrid pattern, the 9/5, 5 days a week paradigm is no longer appropriate. Such workers want to be able to “spread” their work over the day, or even the week, to suit their own circumstances. Working from home involves combining “work life” and “home life” in a way that can make the most of both and ensures that what needs to be done in both spheres gets done but at times that suits each individual worker, subject to organisational needs to be available at certain times. 

Certainly, there needs to be rules around remote working. Constant connectivity should not mean constant availability. Workers must be entitled to plug out and chill out. The law, or collective agreement, should provide for employees who work remotely to be able to agree with their managers working time arrangements that best suits them. Rigid, standardised patters should be avoided, always subject to appropriate basic protections. The law and collective agreements should enable, not enforce.  

The European Commission might give some though to the appointment of an expert group to review the Working Time Directive with a mandate to bring forward suggestion on how to rewrite the law in the light of the world of work as it is today, not as it was thirty years ago. 

For some further interesting data on working from home, see here