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European Working Time Directive and New Deal

The European Working Time Directive is a law passed by the European Parliament and accepted into UK law.


What is the European Working Time Directive?

European Working Time Directive is a law passed by the European Parliament and accepted into UK law. It is based on Health and Safety principles and would be enforced by The Health and Safety Executive. It came into force for the majority of the workforce in 1998 with a phased cut in hours for doctors in training to prevent damage to patient care and safety in the short term.

Essentially it limits all workers in the EU to 56 hours per week from August 07 and 48 hours by August 2009.

It imposes rest requirements of:

  • 11 hours continuous rest in 24 hours.
  • 24 hours continuous rest in 7 days or 48 hours in 14 days
  • 20 minutes break in every shift over 6 hours.
  • 4 weeks annual leave.

It also dictates that compensatory rest must be given for any interruptions of or delay in receiving rest periods.

SiMAP and Jaeger were both rulings in the European Court of Justice

What is New Deal?

New Deal is a contractual agreement between ‘NHS Employers’ (representing the Department of Health) and all Doctors in Training as represented by the JDC of the BMA. This agreed a banding scheme for pay based on total hours worked and the proportion of antisocial hours within that total. It also covers other aspects of junior doctors’ lives such as the provision of mess facilities and standards of accommodation.

The banding is 1,2 or 3 based on hours of work being less than 48, 48-56 or above 56 respectively. The ‘a’ or ‘b’ sub band depends on the number of hours falling into antisocial times. Unlike EWTD there is potential for the New Deal agreement to be modified through discussions between junior doctors’ and NHS Employers representatives.

 

Frequently Asked Questions

1. What about on-call time – is this work? (Impact of the SiMAP and Jaeger cases)

Two cases before the European Court of Justice (ECJ) have clarified that time spent ‘resident on-call’ counts as work. The SiMAP and Jaeger Cases were brought by a Spanish medical union and a German doctor. In both cases, the ECJ ruled that on-call time, when a doctor is obliged to be resident in a hospital or health centre, counts as working time. (For example, a doctor who is required to be resident on-call but is actually asleep counts as working). In Jaeger, the ECJ also ruled that compensatory rest for missed rest must be taken immediately after the end of the working period, rather than aggregated and taken at a later time. Although the judgments applied to particular cases, the assumption has to be that the same interpretations would apply to any UK doctors working similar patterns. You can find further advice at:
http://www.nhsemployers.org/planningyourworkforce/
medicalworkforce/ewtd/pages/ewtd.aspx

Note: On April 28th it was announced that the EC and members states failed to reach a decision. This now means that no further negotiations will take place until the new EC is in place. The UK government retained its right to individual opt out.

2. Does all on-call time count as work?

Only on-call time where a doctor is working or (following the SiMAP and Jaeger rulings) required to be resident or present within the workplace or other specific location counts as work. For doctors on-call from home (or simply required to be contactable and able to return to work), work would start when they are called by the workplace either to return or to offer advice over the telephone, and ceases when that episode of work is completed. Similarly for doctors voluntarily resident at or near the workplace, as long as there is no requirement to be present (only to be contactable and able to return), only time spent responding to calls or returning to work and working will count as working time.

3. Can junior doctors ‘opt-out’ of the 48-hour requirement?

As with other employees, doctors can make an individual choice to opt out of the maximum 48-hour working week if they wish to do so. However, this should be agreed in writing with the employer and no employee can be forced to work more than 48 hours. It has to be remembered that WTD is intended to protect the health and safety of workers and because of this there can be no ‘opt-out’ from the rest and leave provisions. Junior doctors’ contracts also limit them to a maximum 56 hours work a week under the New Deal. In addition all rotas should be based upon a 48 hour template.

4. Are ‘internal locums’ allowed?

Internal cover by juniors is allowed, up to the overall contractual hours limit of 56 hours assuming the doctor has agreed to ‘opt-out’ of the 48 hour limit for the purposes of undertaking the locum work though you still need to be compliant to rest requirements. The WTD rest requirements must still be met and both doctor and employer must be in agreement the arrangement is safe and appropriate.

5. Is teaching/training included in working time?

Job-related teaching/training will count as working time. The definition of “working time” in the Working Time Regulations 1989 includes any period of “relevant training”.

6. What if I want to experience a training opportunity in my own time eg watch a heart transplant?

Time spent experiencing a training opportunity (including participation), such as watching a heart transplant, will count as “working time” if you are there at your employer’s disposal and are carrying out your activity or duties, i.e. receiving “relevant training”.

If you are there of your own free will, i.e. you have freely chosen to be present out of your own interest, your time spent watching will not count as “working time”. In the latter scenario, if you are asked to participate, your time spent participating is likely to be construed by a court as “working time”.

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