Choice and flexibility over working hours : N ew 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@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 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

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/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

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