The European Working Time Directive (EWTD) limits doctors in training to a maximum 48-hour week, averaged over a six month period. It lays down minimum requirements in relation to working hours, rest periods and annual leave.
European Court of Justice rulings
The European Commission's review of EWTD
The Temple report
The European Court of Justice rulings ‘Simap’ and ‘Jaeger’ judgments ruled that:
- time spent on call at a hospital or health centre counts as working time, whether or not any work is actually done (for example, the time a doctor spends resident on call but asleep counts as working time).
- compensatory rest to make up for missed rest periods must be taken as soon as the period of work ends, rather than at a later time (for example, the next day).
As part of its review of the EU working time Directive, the European Commission launched on 21 December 2010 the mandatory second stage of consultation with workers' and employers' representatives at EU level. It also presented a detailed Report on the legal implementation of the Working Time Directive in Member States. The new consultation asks for social partners' views on detailed options to review EU working time rules.
The NHS European Office has worked with NHS Employers and others across the service throughout the consultation period and submitted a response to the European Commission's second stage consultation on behalf of the NHS at the end of February 2011. The response can be read in full here.
The response paper contains some key messages:
- The Working Time Directive needs updating. It needs a new approach at European level which is balanced and realistic.
- Workers in the healthcare sector need to have adequate rest, both for their own safety and that of their patients.
- The ECJ judgments on defining on-call working and compensatory rest periods have made it difficult for Member States to comply with the rest requirements without damaging patient services.
- The effect of the judgments has been to impact adversely on staffing levels, costs, and time available for training and patient care.
- Health services have to be provided on a 24-hour basis, so there needs to be flexibility about applying the rules.
- We welcome the Commission’s suggestions about exploring options for counting resident on-call time differently.
- We welcome the suggestion that there could be greater flexibility in the timing of compensatory rest.
- We agree that framework agreements or legislation at European level could be supplemented by similar arrangements at national or local level, in accordance with local needs and practice.
- We wish the right of individuals to voluntarily opt-out from the 48-hour week to continue to be available to healthcare workers.
- In reviewing the Directive, we consider that focusing on a narrow range of topics, in particular on-call time and compensatory rest, would maximise the chance of achieving successful outcomes.
The Government commissioned an independent review, chaired by Professor Sir John Temple, of the impact of the EWTD on the quality of training. A report of this review ‘Time for Training’ was published 9 June 2010. The report concluded that high quality training can be delivered in 48 hours a week, but not where trainees:
- have a major role in out of hours services
- are poorly supervised
- have limited access to learning opportunities.
The report concluded that changes need to be made to the way in which services and training are delivered in many healthcare settings to ensure that both are of a high quality. The report sets out recommendations for achieving these changes. NHS Employers contributed evidence to the Review and has responded positively to its recommendations in a statement following publication.
Individual junior doctors can opt to work more than a 48-hour week (they are in any case contractually limited to a ceiling of 56 hours), entire departments or groups of staff cannot opt out collectively. Since deciding to opt out is an individual and voluntary decision, it is not sensible to plan doctors’ rotas on the assumption that every single member of the rota, now and in future, will make that choice.
This section of the website includes further information on the EWTD, including Frequently Asked Questions (FAQs), opt-out arrangements, background and policy information, resources and operational issues and further details on the Temple report including NHS Employers' response.