The Government’s initiative to review workers’ rights, and particularly the Working Time Regulations 1998, has reportedly been abandoned as it became clear that there is no appetite among businesses for divergence from EU standards.
Earlier newspaper reports of a review of these regulations, based on the European Working Time Directive, had been confirmed by the new business secretary Kwasi Kwarteng, when he appeared before the parliamentary business, energy and industrial strategy committee on 19 January.
The Government’s apparent rethink may, in the short term at least, reassure those who fear a bonfire of protective legislation, or endless reruns of the political battles of the 1980s.
But the false start suggests that there is still a long way to go before British policy making recovers from the Brexit trauma and responds more effectively to domestic and global challenges.
Although the EU’s Working Time Directive became a flashpoint for hard-line Conservative Euroscepticism, opposition to it was mainly political and symbolic: as much about who has the right to regulate as about the desirability of limiting working hours. But that battle over the regulation of social policy at European level became obsolete decades ago.
From the mid-1990s, European social policy softened and became more about coordination than binding regulation, in preparation for monetary union, whilst enlargement made it much harder to create a secure majority for universally applicable regulatory initiatives.
Meanwhile, British businesses had adapted quietly and pragmatically to the working time regulations, making the most of the opt-outs available to them.
Despite the opt-outs which limited the impact of the regulations, the basic idea behind the working time regulations remains important in protecting employees’ rights. Until they were adopted in 1998, British law set no limits on weekly working hours, and mandated no paid holidays outside of public holidays.
Instead, these working conditions were set by collective agreements between employers and unions, whose scope had fallen to cover 38% of employees by 1998, according to the Workplace Employment Relations Survey – and continued to shrink subsequently.
The introduction of minimum legal rights therefore made sense because it extended protection beyond the minority covered by collective bargaining, and was particularly beneficial to the most vulnerable workers. The 1998 regulations also established an enforcement mechanism through the Health and Safety Executive.
Although controversial, the regulations raised an important matter of public health which has particular resonance today: limiting the working hours of health personnel imposes costs on the NHS, but it helps to prevent staff burnout and turnover, and it also reassures patients and the public.
In some ways, the working time regulations were a piece of unfinished business because they represented a compromise between protection of employees and flexibility for employers.
Finding a balance between the kind of flexibility in scheduling work hours which suits both employer and employee is still an important policy agenda, to which the Government can return now that Brexit is done.
The Good Work Plan presented by Theresa May’s Government in 2018, which responded to Matthew Taylor’s review of working practices, remains a useful place to start. In particular, it draws attention to the need to ensure that people who are self-employed have access to similar protections as the employed, including sick pay and maternity pay.
These questions have become more pressing in the context of the lockdowns and restrictions caused by the Covid-19 pandemic.
Already, before the virus changed the way we live and work, a report by the Chartered Institute of Personnel and Development had pointed out how inflexible the labour market is for employees, including but not solely for those with caring responsibilities – and stressed the need to build in a range of options (such as including the ability to reduce and rearrange hours to suit individual needs) into employment practices.
Progress over the last decade or so had been glacial, the report argued, with the share of people able to work flexibly up from 23% to only 27%. For this reason, the campaign to make all jobs flexible by default has gained momentum, led by the CIPD as well as family campaign groups.
More radically, the campaign group Autonomy has proposed reducing working hours for all, and perhaps pushing for a four day week.
Their report sees working time reduction as a solution to the growing polarisation between those able to work remotely (but sometimes unable to set a boundary between work and home life) and workers in a state of extreme dependence who cannot refuse jobs even when ill, contagious or inadequately protected against infection; or the growing numbers of workers made jobless by economic shutdown, or by technological change.
These long-term labour market trends, which have been dramatically exacerbated by Covid-19, generate marked socio-economic inequalities.
Elsewhere, there are the beginnings of a more pro-active, responsive approach than that taken by the UK Government.
Ireland recently adopted a strategy on remote working which proposes a right to request remote working, and also the right to disconnect – which the European Parliament called upon the European Commission to enshrine in law as a basic human right.
Instead of scrapping basic rights aimed at restricting excessive working hours and ensuring that workers have rest breaks, the pandemic has taught us that we need to strengthen the protection of vulnerable workers.
We also need to learn lessons from lockdown about how flexibility can work in the best interests of business productivity, public health, and individual employee wellbeing.
By Susan Milner, Professor in the Department of Politics, Languages and International Studies at the University of Bath