Working time and Brexit: Bad Karma?
Imagine a Karmic invitation to be reborn as a piece of employment legislation. It is very likely that the Working Time Directive (WTD) would be at the very bottom of many people’s lists. It has attracted condemnation across the political spectrum, albeit for different reasons. In this way, the WTD may provide Euro-sceptics of all political persuasions with a fine argument in favour of ‘Brexit’.
For the political right, the WTD is emblematic of everything that is wrong with a meddling Europe. It represents a sclerotic regulatory approach, the effect of which is to impose inefficient rigidities across European labour markets. For the political left, the WTD represents the perils of new regulatory approaches based on ‘reflexive governance’, which permit employers and workers excessive flexibility in the implementation of labour rights such as being allowed to ‘opt out’ of the core fundamental right not to work more than 48 hours per week.
Against those views, the European regulation of working time should be regarded as a monumental and valuable political achievement. The aim of the WTD is to set down “minimum safety and health requirements for the organisation of working time”. To this end, the Directive specifies inter alia minimum daily and weekly rest periods, a maximum weekly working time of 48 hours, the right to paid annual leave of four weeks, various specific provisions on night work and shift work, as well as an elaborate series of derogations and specific procedural mechanisms for modifying and setting the content of basic labour standards.
In answer to our friends on the sceptical right, the flexible virtues of the WTD should give you pause for thought. Most significantly, the regulatory imprint of the WTD in English law is now ineradicable, especially in cases concerning the interpretation of implied terms in contracts of employment, such as Barber v RJB Mining UK Ltd. ‘Brexit’ will not reverse the genetic mutation that has already occurred in English law’s encounter with the WTD. As collective bargaining is progressively eroded, workers will continue to look for ways to protect their working-time rights. This may well occur through contractual litigation, building upon cases like Barber to develop the protective content of implied contractual terms. Such litigation will be expensive and time-consuming for workers and employers. It will also be fraught with the uncertainty that comes with using open-textured norms as vehicles for employment claims. By contrast, the rights in the WTD are relatively precise and there are well-established procedural mechanisms that enable employers, trade unions and workers to adjust those norms to suit their own needs and preferences. Contractual litigation is likely to be significantly less ‘reflexive’.
In answer to our friends on the sceptical left, be careful what you wish for. Since the enactment of the WTD, there has been a humanisation of working time practices across Europe, reflected in the overall reduction of working time for many workers. It is important to resist comedy caricatures of the ‘right to holidays with pay’. The idea of a paid holiday as a fundamental right may be a source of fun to well-paid philosophers on vacation in their Tuscan villas, but it has prevented workers from literally working themselves to death. This achievement cannot be gainsaid.
The WTD has also given rise to an extensive body of interpretive case law from the Court of Justice of the European Union (CJEU), which is an important counterweight to the more formalistic approach of English courts. The CJEU has been a rich source of principles, deploying the framework of fundamental social rights to protect vulnerable members of the labour market engaged in casual or atypical work, as in BECTU. While there is undoubtedly too much scope for flexibility in many of the WTD’s core rights, at least some of those rights (such as the right to paid annual leave) have been vindicated by the CJEU against erosion by hostile employer practices.
If given the opportunity for a Karmic rebirth as a piece of employment legislation, for me, the WTD wins hands down. It provides a compelling example of the best that Social Europe has to offer. It is certainly not perfect. But it is a country mile better — or perhaps just a country kilometre better — than the bleak possibilities presented by ‘Brexit’.
Editorial Note: This is the latest post in the OxHRH Blog’s special series which examines the impact that Brexit could have on workers’ rights in the UK.