Exempted are employees who determine their own hours or where the amount of their work is not measured or pre-determined. It would appear that agency workers and sub-contractors are not covered by the Directive, but casual workers and teleworkers may be. However it is sometimes not easy to determine whether a particular individual is an employee or is self-employed and caution must be exercised here. Refusal by employees to work more than 48 hours Because the 48 hour period is calculated as an average over a period of time, no one can suddenly down tools after 48 hours have elapsed. For employees to invoke the Directive, they would have to prove they had been made to work more than 48 hours over a period of four months and that they were not categorised among the exceptions.
Issues are likely to be raised as to whether consent has been given freely by an employee.
Until legislation is introduced to enact the Directive, it is unclear whether a general contractual agreement to work more than 48 hours will amount to consent, whether consent given orally will suffice and whether consent, once given, can be revoked. Unless a national minimum wage is introduced, many employees will want to exceed the hourly weekly minimum which will be effectively 768 hours in any four month period. It will be possible to derogate from the directive in line with local and national collective agreements. The eternal blight on career prospects is likely to mean that many employees will agree to exceed 48 hours. As we state above, the Government has made it quite clear that there is no question of implementing the Directive in the private sector without prior consultation with industry and full public consultation on the issues and options before the Directive is enacted in the UK by way of Regulations.