Unlimited Employee Autonomy over Working Time? The Potentially Empty Notion of Autonomous Workers in EU law

Abstract

Digital technology is often associated with greater working time autonomy: in theory at least, digitalisation can result in workplaces where employees are less subordinate to their employers in terms of working time. Article 17(1) of Directive 2003/88/EC on certain aspects of the organisation of working time acknowledges that certain working time measures do not apply in case of ‘autonomous workers’. However, the Court of Justice of the European Union has interpreted this exception strictly, excluding from its scope workers who enjoy only partial autonomy over their working time. The aim of this study is to explore whether the EU concept of autonomous worker meets practical requirements or needs to be amended. In section 2, I argue for a more permissive interpretation, as a predominantly autonomous schedule could still justify some flexibility as regards working time rules. This interpretation would also better fit the dual system of subordinated employees and self-employed workers who enjoy more flexibility in the determination of the working hours. Under section 3, the article explores the various methods that employers use to maintain control over the organisation of working time in non-standard work environments. Research shows that the combination of different controlling measures can ensure that employers have a decisive influence over the measure and schedule of working time, even in nominally flexible working arrangements. Consequently, while a broader understanding of the concept of autonomous workers is suggested, it shall be carefully assessed in each case whether the worker actually enjoys autonomy in respect of working time.