Choice and flexibility over working hours: New statutory approaches in Germany, the Netherlands and the UK

1
Choice and flexibility over working hours New
statutory approaches in Germany, the Netherlands
and the UK

• Ariane Hegewisch
• Program on WorkLife Law
• American University, Washington College of Law
• www.worklifelaw.org
• hegewisch_at_WCL.american.edu

2

• 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

3
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

4

• 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

5
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

6

• 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

7

• Has it reduced gender imbalance? Yes and no
• UK
• 19 of women, 10 of men appliedMen 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

8

• 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

9

• 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

10

• And the big question
• what if the labor market turns

11

• 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/ema
  r
• 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

12
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