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Is the Opt-Out Hurting Workers in the UK?

Updated: Sep 4, 2021


The Working Time Directive, established to improve the long-term wellbeing and the overall work-life balance of workers, ruled that a worker cannot work more than 48 hours per week on average - normally averaged over 17 weeks. The number of employees working more than 48 hours decreased from 3.8 million (16% of the total workforce) to 3.25 million (12.7% of the total workforce) following the implementation of Working Time Regulations (WTR) in November 1999 (TUC, 2008).

However, the ‘Individual opt-out’ provision of the Working Time Directive gives an EU member state the option not to apply the 48-hour average weekly limit in cases where, among other conditions, the individual worker has agreed to perform such work. The United Kingdom is the only member state which exploits this derogation (Barnard, Deakin & Hobbs, 2003).

People have mixed motivations to work overtime. According to the work-life balance employee survey, a little less than three-quarters of overtime workers mention reasons related to workload requirements, one-fifth of them work more to earn more money and one-twentieth do overtime because the organizational culture so demands (Devlin & Shirvani, 2014). This would suggest that the opt-out is not necessarily taken out of individual workers’ choice. In fact, it has been further reported that:

▪ 44% of those who have signed an opt-out say that it was a condition of their employment

▪ 23% of long hours workers have not signed an opt-out but have been put under pressure by their employers to work more than 48 hours

▪ 50% of the long hours workers who have either raised issues about the 48-hour limit or know that such issues have been raised by somebody else in their workplace say that the issue was not resolved (TUC, 2008)

Do longer working hours affect Effective Working Time?

The E-R model used by Geurts et al., 2003 theorizes that when effort is expended at work, it has rewards (e.g. productivity) and short term psychological and physical costs. When measuring productivity, fixed unproductive time and better capital utilization rates lead to increasing returns to hours. Decreasing returns to hours worked is typically related to worker fatigue. It is most relevant in the manufacturing sector but is also noteworthy in the service economy, with comparatively shorter hours. If both apply or neither applies, we see output being proportional to the number of hours worked.

A key element to consider in the working hours and productivity relationship is Effective Working Time. One reason for the UK’s long hours culture is that many offices have a culture of presenteeism, where employees are judged by the hours that they spend in the office rather than on the quality or volume of their work ( TUC, 2008). But these additional hours spent do not significantly contribute to effective working time. If the opt-outs were removed, these hours would simply vanish with no resultant drop in output or profitability.

Long Working Hours and Wellbeing

Looking at how longer working hours are affecting the health and wellbeing of workers is important because a causal relation exists between them (White & Beswick 2003). Three reviews have also found evidence of significant statistical relationships between longer work hours and poorer health and wellbeing outcomes (Sparks, Cooper, Fried, & Shirom, 1997; Spurgeon et al., 1997; van der Hulst, 2003), and this relationship has been found to vary across sectors and locations (Green, Burke and Cooper, 2008).

A positive relationship between depression and long working hours can be ascertained (Bryan & Nandi, 2015). Similarly, for social dysfunction (Van der Hulst, 2003). A peculiar and contradicting result from a study is that working more than 60 hours a week increases the risk of disability retirement but working more than 50 hours a week was related to lower sickness absence among both men and women (Van der Hulst, 2003). This peculiarity could be associated with those who work more than 50 hours a week and their motivation to do so.

In my proposed research, I hope to look if and how the opt-out provision – sometimes not taken up voluntarily – affects the wellbeing of workers.

My addition

Let’s zoom in to the market perspective. The managerial derogative allows professionals and managers to choose their own working time levels. Stimulated by the desire of self-growth and more profits, they put in their best efforts and thus have comparatively longer working hours. The provision for opt-out and the managerial derogative profits them. But when in an organization, the culture of working long hours is started by the manager, so others might feel obligated to put in a higher number of hours than they would like. A study conducted by the Institute of Employment studies found the same hypothesis working on surveyed employees (Kodz, Kersley, Strebler & O'Regan, 1998).

The sectors with a particularly high incidence of long working hours were construction, transport, communication and agriculture, forestry and fishing. According to the Second WorkLife Balance employee survey in 2004, 19 per cent of all employees worked or were contracted to work more than 48 hours per week, and of these 27 per cent had signed the opt-out, 70 per cent had not signed the opt-out and 3 per cent did not know about it. It is reasonable to think that the proportion of employees working overtime who either did not know about the opt-out or did not sign the agreement would be lesser in the case of qualified jobs: thus, more in sectors such as fishing, forestry, construction, agriculture and the like. This indirectly points towards low-income, unqualified workers doing comparatively more overtime as a proportion of all workers doing overtime.

So, apart from the people able to access the managerial derogative, bottom- as well as mid-level employees might be forced into working longer hours or choose to do so for higher pay; in both cases, the purpose of WTR seems void.

Thus, the opt-out is giving individual employees the power to work at his or his employer’s will for some short-term benefits without themselves considering the long-term health and wellbeing concerns for which WTR were put into place to protect against.

In my intended research, I plan to look at the comparative data between the UK and other European nations and whether the opt out is benefitting the UK economy in terms of productivity and long-term wellbeing. This would involve looking at previous research to test the effective working hour hypothesis, and comparing psychological wellbeing with respect to the working hours of workers across countries. I also hope to look at the reasons behind changes in productivity with respect to working hours from increasing returns to hours (Lesie 1984), to proportionate returns to hours (Anxo & Bigsten 1989), and to decreasing returns to hours (Shepart and Clifton 2000); and look for any possible link with the opt-out provision. In my next article, I hope to review the literature encompassing opt-out, its rationale and its need, specifically in the UK.

Soumya Khurana


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