EU time directive/termination payments. Up against the clock
17 December 1996
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Every lawyer is probably familiar with the European Working Time Directive, due to have been implemented by EU member states on 23 November 1996. The Press attention on the subject is hard to avoid.
However, not all lawyers will be aware what precise form the UK regulations will take, as a result of the UK Government's doomed challenge to the legal basis of the Directive and its attempt to have it annulled.
This was an exercise which raised eyebrows at its inception because the UK had spent considerable time with its EU partners negotiating, for its own benefit, a raft of exceptions and derogations to the Directive during the lead up to its promulgation in 1993.
The UK's challenge began to look hopeless when the Advocate General gave an opinion that was at odds with the UK's stance in March of this year. It finished when the European Court of Justice ruled against the UK - except in one very minor respect - on 12 November.
The court ruled that the legal basis of the Directive, under Article 118A of the Treaty - a health and safety measure, which allowed the proposal to be passed against the UK's wishes by qualified majority voting - was legitimate. Working hours are considered a matter of health and safety for the individual.
The principal provisions of the Directive are well-known:
a maximum 48-hour week, annual leave of four-weeks paid holiday; minimum rest periods of 11 hours per day and 35 hours weekly; maximum average night shifts of eight hours; various other protections for night workers; and rest breaks after six hours of work each day.
While practising lawyers are attending to the queries and concerns of clients in this area, they may not yet have considered the effect of the Directive on their own firms. So, what are the repercussions likely to be within the legal sector?
First, there is a range of workers' categories excepted from the Directive. For example, the self-employed are not expressly excluded from the Working Time Directive, but the Framework Directive on Health and Safety, which gave rise to the Working Time Directive, allows the definition of an employment relationship to be crafted in each member state according to its own laws and practices.
In another context, the European Court in Mikkelsen (1985) ECR 2639 has decided that the definition of "employment relationship" - and, therefore, of "employee" - is a matter for each member state. This being the case, the UK will probably take up the option of excluding the self-employed, which would take practising barristers and equity partners out of the range of the Directive.
However, all other employees in law firms or chambers are covered because none of the other excepted categories appear to apply. One possible exception to this is that most of the Directive's provisions - apart from annual leave entitlement - can be excluded in the case of managing executives or others who have autonomous decision-making powers and control over the duration of their own working time. The Government may find some scope for manipulation in this area.
Although, at first glance, applicable to chief executives and those in similar positions, it could arguably apply to employed heads of departments or team leaders, even though they are not proprietors of the business.
On the other hand, would these individuals really have control over the actual duration of their working time as opposed to the times at which it might be performed?
Most employees have a core responsibility to work for a minimum amount of hours and even the senior employed lawyer, who may be able to work at more unusual times, will find it difficult to control his or her maximum duration of working time entirely. This is especially so in the current legal climate, where a lawyer's working time is linked to annual or monthly targets of billable hours.
Having found little room for manoeuvre with excepted categories, it is necessary to look at the more detailed derogations to find ways that the Working Time Directive, or rather its UK regulations, can be manipulated. One of the most important is that the 48-hour working week can be exceeded by agreement with the worker, provided that the employer keeps certain records.
There are those who argue that any current employment contract requiring work in excess of 48 hours can be used, once the Directive is in place, in order to exceed the 48 hour threshold.
Equally, it is arguable that such consent cannot be valid for the purposes of the Directive if it is given at a time when the Directive did not apply and the worker was unaware of any right to object under European law.
It is likely, therefore, that work in excess of 48 hours will require express agreement by employees after the Directive comes into place. Failure to do so could give rise to breach of the new obligation.
The four-week paid annual leave requirement will not be applied for three years. Until then, three weeks may be chosen as a maximum in domestic law. However, these days it is hard to imagine how any law firm offering fewer than three-weeks holiday could expect to recruit staff.
Finally, one of the most important areas of the Directive concerns the prescriptive rules on working patterns.
These include 11 hours rest per day and 35 hours rest per week together with rules about rest breaks and maximum hours for night workers. Here the Directive allows the patterns to be adjusted by collective bargaining provided that appropriate compensating rest periods are put in place.
In many industry sectors, this would give employers a sensible route through the otherwise inconvenient rules in the Directive. However, it would be wise to assume that col lective bargaining structures would not generally be welcome in legal quarters. If this is the case, then law firms will not be able to take advantage of such a derogation and will have to look towards the provisions of the regulations as they stand.
Practitioners may claim that the Directive will have little effect on them. After all, support staff will generally not be asked to work in excess of 48 hours without their agreement. Further, which aspiring young lawyer is going to object to long hours when excessive billable hours are a pathway to promotion in the firm?
However, there may be workers with personal commitments, who have perhaps abandoned the climb up the greasy pole and may wish to stick to their rights.
Although it is unclear what shape the UK regulations will take, there ought to be a remedy for those who are not only disciplined or dismissed for refusing to work outside the Directive, but also for those who are victimised or prejudiced in a manner not afforded to their more workaholic colleagues.