The United Kingdom Right to Request as a Model for Flexible Work in the European Union

• DOI: http://doi.org/10.1111/ablj.12117
• Author: Robert C. Bird,Liz Brown
• Published date: 01 March 2018
• Date: 01 March 2018

The United Kingdom Right to

Request as a Model for Flexible

Work in the European Union

Robert C. Bird* and Liz Brown**

Flexible work, the practice of giving employees some control over their working

time, can transform the modern workplace. Once the province of scattered national

legislation, the European Union is now considering the inclusion of flextime rights

in the Working Time Directive (WTD), the leading EU legislation related to work

time. In this article, we propose that the European Commission should adopt a right

to request flexible work as part of the WTD. Adoption of the right to request flexible

work would significantly alleviate the challenges employees face in maintaining

work–life balance. The right to request flexible work can also provide benefits to

employers by increasing employee loyalty and productivity. Finally, adoption of the

right to request flexible work into the WTD would improve the overall effectiveness

of the EU’s employment law framework in an increasingly fast-paced and

competitive society.

INTRODUCTION

Workers around the world are increasingly pressured by the wage-

competitive and rest-indifferent expectations of global e xchange. Employ-

ees must now make faster decisions, possess greater skills, and adjust

more quickly to shifting economic forces than any working population in

human history. These trends place pressure on a key concept—working

time. Working time, the period in which an individual is working for an

*Professor of Business Law and Eversource Energy Chair in Business Ethics, University of

Connecticut.

**Assistant Professor of Business Law, Bentley University.

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C2018 The Authors

American Business Law Journal V

C2018 Academy of Legal Studies in Business

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American Business Law Journal

Volume 55, Issue 1, 53–115, Spring 2018

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employer or otherwise stands at the employer’s disposal,

1

is becoming

chaotic and fragmented.

2

Millions of workers are subjected to unpredict-

ably variable part-time work, temporary work, and contract work in order

to sustain work–life balance or remain employed at all.

3

Such unstable

arrangements contribute to familial discord and increase stress by exacer-

bating future uncertainty.

4

Workers in these conditions often have little

bargaining power and therefore may be forced to accept long hours in

declining workplace conditions.

5

Working time is not simply a mark of

hours employed, but a potentially turbulent and burdensome force that

can destabilize individuals, families, and society.

In the European Union, workers have benefited from the passage of

workplace health and safety protections that have made work more

humane, less dangerous, and more equitable. One of the most impor-

tant sources of EU workplace protections is the Working Time Directive

(WTD).

6

The WTD, first enacted in 1993 and subsequently modified

with amendments, is an EU directive

7

that protects the health and safety

1

See Robert C. Bird, Why Don’t More Employers Adopt Flexible Working Time?, 118 W. VA.L.

REV. 327, 330–34 (2015) (discussing the evolution of working time from the U.S. perspec-

tive); Jeff Kenner, Working Time, Jaeger and the Seven-Year Itch,11C

OLUM.J.EUR. L. 53,

63–69 (2004–05) (discussing the emerging definition of working time as articulated by the

EU Working Time Directive).

2

Charlotte Villiers, Why Employee Protection Legislation is Still Necessary,33COMP.LAB.L.&

POL’YJ. 481, 484–85 (2012).

3

Id. at 484–86.

4

Id.

5

Id.

6

Directive 2003/88/EC of the European Parliament and of the Council of 4 November

2003 Concerning Certain Aspects of the Organisation of Working Time, 2003 O.J. (L 299)

9, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri5CELEX:32003L0088 [hereinafter

Working Time Directive].

7

A directive is an act of the EU legislature that establishes a goal that all EU countries

must meet, but leaves the discretion of how to achieve the goal to individual member

states. Regulations, Directives and Other Acts,E

UR.UNION, https://europa.eu/european-union/

eu-law/legal-acts_en (last visited Sept. 9, 2017). The goal of directives is to encourage har-

monization of standards between member states. Melanie L. Ogren, Francovich v. Italian

Republic: Should Member States be Directly Liable for Nonimplementation of European Union

Directives?,7T

RANSNAT’LLAW. 583, 586 (1994). Directives arise from article 288 of the

Treaty on the Functioning of the European Union, which states that “[a] directive shall be

binding, as to the result to be achieved, upon each Member State to which it is addressed,

54 Vol. 55 / American Business Law Journal

of workers through the regulation and control of working hours.

8

Nota-

bly missing from the WTD, however, is the recognition of working

rights related to flexible work. Flexible work, also commonly known as

“flextime,” involves granting an employee at least some control over

what times, places, and conditions that work obligations may be com-

pleted.

9

Employers in the United States have offered flextime benefits

to workers with consequent gains in productivity and worker satisfac-

tion.

10

Flextime has the potential to offer both societal benefits to work-

ers and productivity gains to employers. Yet, insufficient effort has been

made to incorporate flextime standards across the European Union,

and scholarly analysis of the issue remains incomplete. This article

comes at an opportune time. The European Commission (EC) is cur-

rently conducting a major review of the WTD in order to update its

standards for a modern economy.

11

The EC is investigating whether the

WTD should introduce “specific rules regulating particular situations ...

such as ... flexitime” and has distributed surveys for public comment.

12

Incorporating flextime rights into a revised WTD can substantially

impact the well-being of workers and families.

13

Modern workers are

but shall leave to the national authorities the choice of form and methods.” Consolidated

Version of the Treaty on the Functioning of the European Union art. 288, Oct. 26, 2012,

2012 O.J. (C 326) 171–72. An EU regulation, by contrast, is binding and has direct

application to the member states. Id.; see also Elisabetta Rotondo, The Legal Effect of EU

Regulations,29C

OMPUTER L. & SEC.REV. 437, 438 (2013).

8

Kenner, supra note 1, at 53–54.

9

Robert C. Bird, Precarious Work: The Need for Flextime Employment Rights and Proposals for

Reform,37B

ERKELEY J. EMP.&LAB. L. 1, 3 (2016) (citing Candace Saari Kovacic-Fleischer,

United States v. Virginia’s New Gender Equal Protection Analysis with Ramifications for

Pregnancy, Parenting, and Title VII,50V

AND.L.REV. 845, 906 n.340 (1997)).

10

Bird, supra note 1, at 33–40.

11

Working Conditions—Working Time Directive,EUR.COMM’N, http://ec.europa.eu/social/main.

jsp?catId5706&langId5en&intPageId5205 (last visited Sept. 9, 2017) [hereinafter Working

Conditions].

12

Review of the Working Time Directive (Directive 2003/88/EC),EUR.COMM’N, http://ec.europa.

eu/social/BlobServlet?docId513800&langId5en (last visited Sept. 9, 2017).

13

See, e.g., Phyllis Moen et al., Changing Work, Changing Health: Can Real Work-Time Flexibil-

ity Promote Health Behaviors and Well-Being?,52J.H

EALTH &SOC.BEHAV. 404, 412 (2011)

(finding that “[p]articipating in the [flexible work] initiative directly increases employees’

health-related behaviors of sleep and exercise, as well as the likelihood that employees will

not go to the workplace when sick and will see a doctor when sick....”).

2018 / Right to Request 55