Professor Steve Peers, University of Essex





Sunday Times and the Sun suggest that the government is planning to scrap the EU working time Directive in the UK as soon as it can after Brexit takes effect. This violates the government’s previous pledges and is justified by highly misleading claims in The Sun. Parallel reports in theand thesuggest that the government is planning to scrap the EU working time Directive in the UK as soon as it can after Brexit takes effect. This violates the government’s previous pledges and is justified by highly misleading claims in





First of all, it violates a clear pledge that Theresa May made regarding workers’ rights in her Lancaster House speech setting out her Brexit policy. Point 7 reads:





…a fairer Britain is a country that protects and enhances the rights that people have at work. That is why, as we translate the body of European law into our domestic regulations, we will ensure that workers rights are fully protected and maintained.





Indeed, under my leadership, not only will the Government protect the rights of workers set out in European legislation, we will build on them





Sun headline, scrapping the Directive will allow more workers to claim overtime: “British workers set for post-Brexit overtime boom as ministers plot to scrap EU limits”. Secondly, it seems that this plan might be accompanied by a misleading attempt to suggest that it makes workers better off. According to theheadline, scrapping the Directive will allow more workers to claim overtime: “British workers set for post-Brexit overtime boom as ministers plot to scrap EU limits”.





More precisely, the article claims: “The Tories won an opt-out in 1993 but Labour MEPs voted to end the UK’s right to break the limit in 2003.” The first part of this sentence is accurate: the original Directive (amended to apply to more workers in 2000 , then codified in 2003 ) gives each Member State the option to let workers decide to opt out individually of the usual average limit of 48 working hours a week, on the condition that they are not subject to any ‘detriment’ by the employer if they opt not to do so (see Article 22 of the 2003 version). Indeed, a study by Barnard, Deakin and Hobbs showed that as a result, the Directive had little impact on the UK’s long working hours.





However, the second part of the sentence is highly misleading. Along with the rest of the article, it gives the reader the impression that each worker’s individual opt out to work over 48 hours a week on average no longer exists. This is not true: a 2004 proposal to amend the Directive to (among other things) limit use of the opt-out failed in 2009 due to disagreements between the European Parliament and the EU Council. Employers and unions then failed to agree on amendments in 2013.





Sun article, many of those additional working hours are unpaid. This continued use of the overtime opt-out is confirmed by a report on the Directive from the EU Commission earlier this year: 18 Member States use this option, and the UK is one of six Member States which allow workers in every sector of employment to choose to work extra hours. You can find the option in the UK’s Working Time Regulations , which transpose the Directive into UK law (it’s Regulation 5). In practical terms, a recent TUC analysis estimates that over 3 million UK workers work over the 48-hour average limit. Moreover, contrary to the implied promise of extra pay in thearticle, many of those additional working hours are unpaid.





not prevent workers from earning overtime pay if they choose to (assuming their employer pays them extra for those additional hours), it guarantees them important rights too. Daily working hours are limited to a maximum of 13; there must be a rest break if the working day is longer than 6 hours; workers must get at least one day off a week; and there are guarantees for night workers. There’s no possibility of opting out of these rights for workers, but there is a lot of flexibility for Member States or employers, for instance to exempt certain jobs from these guarantees or to calculate the limits over a longer period, to take account of (say) longer shopping hours in the weeks before Christmas. Thirdly, not only does the Directiveprevent workers from earning overtime pay if they choose to (assuming their employer pays them extra for those additional hours), it guarantees them important rights too. Daily working hours are limited to a maximum of 13; there must be a rest break if the working day is longer than 6 hours; workers must get at least one day off a week; and there are guarantees for night workers. There’s no possibility of opting out of these rights for workers, but there is a lot of flexibility for Member States or employers, for instance to exempt certain jobs from these guarantees or to calculate the limits over a longer period, to take account of (say) longer shopping hours in the weeks before Christmas.









increasing workers’ pay, scrapping the working time Directive would reduce that pay for many of them. It’s unfortunate that while most journalists aim to speak truth to power, some seem content to mislead on its behalf. Put simply, far fromworkers’ pay, scrapping the working time Directive wouldthat pay for many of them. It’s unfortunate that while most journalists aim to speak truth to power, some seem content to mislead on its behalf.





If the mooted plans go ahead, this would prove that the Conservative party’s pledge to retain all workers’ rights derived from EU law was worthless. Perhaps the government’s reported lack of integrity is unsurprising, in light of Theresa May’s promise that there would be no early election . But breaking that promise ultimately only made her own working conditions worse; breaking her promise on workers’ rights will make those conditions worse for millions of others.





Barnard & Peers: chapter 20