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EU talks on opt out collapse

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UK employers may well be breathing a sigh of relief as five years of discussions between the European Parliament and EU governments on the working time opt out, have finally disintegrated. The latest round of negotiations saw the European Parliament's attempt to scrap the UK's opt out from the maximum 48-hour working week in tatters, leaving UK employers free to continue to offer staff the opportunity to work longer hours.

The Working Time Regulations 1998 ("WTR") provide that where applicable, a worker's average working time (including all overtime and, it is thought, time spent working for others) must not exceed 48 hours. Employers must take all reasonable steps, in keeping with the need to protect health and safety, to ensure that this limit is complied with. A failure to comply with this legislation is an offence and is punishable with a potentially unlimited fine. However, the 48 hour limit does not apply if the employer has obtained the worker's agreement in writing to perform work in excess of the limit. This is known as an "opt out agreement".

There has been ongoing debate about whether the opt out from the 48 hour week should be scrapped, in order to put an end to what unions describe as the UK's "dangerous long hours culture". The proposals have been vigorously defended by the UK and a number of other EU Member States which make use of the exemption in the European Working Time Directive (which is implemented by the WTR). As the marathon negotiations between European Parliament and EU governments failed to break the deadlock on this issue, the current regulations remain in force.

Business groups are united in their relief that working hours will not be restricted, which could have had a detrimental effect on business, particularly at a time of recession. Businesses need to be flexible to customer demands in tricky times and this can often mean employees working longer hours. Likewise, many employees are happy to have the opportunity to work overtime and earn some extra money.

Employers should remember, however, that that despite this latest decision, the opt out must be used lawfully and in accordance with the WTR. This means that workers should be given the right to opt back in by giving no more than three month's notice. Even if a worker has signed an opt out agreement, he or she can not be required to work excessively long hours if this presents a risk to his or her health and safety or that of others, as employers have a duty to protect their workers' health and safety.

If you would like more information on the Working Time Regulations, please contact a member of the Employment team.

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