Choice and flexibility over working hours:

New statutory approaches in Germany, the Netherlands

and the UK

Ariane HegewischProgram on WorkLife Law

American University, Washington College of Lawwww.worklifelaw.org

hegewisch@WCL.american.edu

• Netherlands and Germany:– Reduce or increase hours, and related scheduling of

hours– All employees, irrespective of reason – Small employers excluded/ less strict rules

• UK– Change re number of hours, scheduling of hours and

location of hours– Limited to parents of under 6s and disabled children

(will be extended to carers) – Procedural right only: employer business reasons

cannot be challenged

Conditional Rights to change hours of work• Dutch Working Hours Adjustment Act 2000 (WAA) (July 2000)• German Part-time and Fixed term contract Act (Jan 2001) • UK Right to Request Flexible Working (April 2003)

• Law in all three countries specifies that a request can be rejected if arrangement would lead to operational problems or (NL: seriously) disproportionate costs. UK statute specifies seven grounds for rejection:

– additional costs – detrimental effect on ability to meet customer demand – inability to re-organize work among existing staff – inability to recruit additional staff – detrimental impact on quality or performance– insufficient work during the periods the employee proposes to work – planned structural changes

• Policy objectives: – Increase workforce participation and

utilization reduce impact of interrupted employment patterns create quality part-time jobs

- Improve work family reconciliation- Reduce gender inequality- Increase possibility for diverse working

patterns (NL)- Redistribute work/ reduce unemployment (D)- Acknowledge employer constraints

Number of requests• Netherlands:(2 years)

– 15% of all employees applied for reductions in hours; of these: 60% fully, 11% partially accepted; 11% rejected; remainder pending

• UK: (2 years)14% of all employees requested some change;

of these 25% requested part-time work; 22% flexitime• 22% of employees with kids under 6 years• 18% of employees with kids 6 to 11 years • 15% of employees with kids 12 to 16 years• 10% of employees without dependent kids

69% fully; 12% partially accepted; 11% rejected

• Germany (2 years)- Less than 1% of all employees (85,000 Year 1; 124,000 Year 2); – 92% accepted

Not bad but: • Has it reduced the need to change jobs to get

shorter hours? Probably not

– Evidence from NL and D: not so far

• Has it reduced part-time penalty? Probably not– No statistical evidence; anecdotal evidence : still a

problem

• Has it opened managerial and professional jobs? A little bit but very slow– Managers in UK only half as likely to apply for change

• Has it reduced gender imbalance? Yes and no– UK:

• 19% of women, 10% of men applied;Men half as likely to give childcare reasons as women, also leisure and training

• Men more likely to be refused

– Germany: • Men 29% of applications in West, 15% of applications in East

• Has it reduced long hours culture? No– No reduction in demand for fewer hours– People with 40+ hours per week significantly less likely to apply

for change, or to succeed

• Only about a quarter to half of all people who would like a change actually ask for it:– Fear of adverse effect on prospects, job security and

work climate (jealousy from colleagues)– Believe employer would not accept anyway

– Feel that it is not possible in their job (esp. among managers) Realism, lack of imagination and self-censorship

• How to make progress?

Importance of collective agreements and broad regulatory framework on working hours(missing in UK)

Importance of detailed workplace negotiations to get tailored solutions and culture change

Role of litigation in challenging discrimination and making non-compliance more costly for employers

And the big question:

what if the labor market turns…

References on UK and Netherlands

• MUConsult B.V. (2003): Onderzoek ten behoeve van evaluatie Waa en Woa (Evaluation of the Working Time Adjustment Law; executivesummary) (13th November)

• Burri, S. (2005): Working time adjustment policies in the Netherlands; in FES (ed): Working time for working families: Europe and the United States; Washington DC: FES

• Palmer, Tom (2004): Results of the first flexible working employee survey; dti Employment Relations Occasional Papers URN 04/703 www.dti.gov.uk/er/emar

• Camp, Christine (2004): “Right to request flexible working: Review of impact in the first year of legislation; Working Families; prepared for the DTI; March

• CIPD (2005): Flexible working: Impact and implementation- An employer survey; Chartered Institute of Personnel and Development: London; February

• TUC (2004): More time for families: tackling the long hours crisis in UK workplaces; Trade Union Council: London; August

Court cases• Not many cases in any of the countries; two thirds pro

employee (UK harder to tell)• Decisions in favour of employee where employer cannot

show that reasonable effort to accommodate request • eg job advertisements; ‘managers need to be full-time’; ‘customers

need continuity’ etc

• Cost of training: • German case pro employer; • UK pilot case (Starmer) pro employee (Sex discrimination)

• Health and safety – cost of supervision• Limited restructuring: cannot force employer to reduce

overtime to fill job vacancy (technical workplace) (D)• Scheduling of hours v. number of hours: D vs NL