18 / 2 / 2009
1 August 2009 saw the full implementation of the European Working Time Directive (EWTD) into UK legislation, including for junior doctors.
EWTD limits workers 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.
SiMAP and Jaeger
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).
The Temple report
The Government commissioned an independent review, chaired by Professor Sir John Temple, on the impact of the EWTD on the quality of training. The report published in June 2010 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.
Read more on the Temple report.
Individual doctors can opt out and work more than a 48-hour week if they choose to do so. Opting out is an individual and voluntary decision.
Even before EWTD came into effect for junior doctors in training, NHS trusts were required to monitor and record trainee doctors' working hours. The 2000 contract for junior doctors introduced pay bandings which apply according to work intensity and weekly hours of work. See our pages on Junior doctors' Terms and Conditions for more information.
A small number of rotas were not able to achieve compliance by the August 2009 deadline. Of 6,646 rotas operating across 247 trusts in England, 200 were covered by derogation in the statutory instrument published on 23 June 2009. A further 100 were allowed derogation in October 2009. This allowed them to operate at 52 hours per week temporarily until they complied with 48 hours. There are no longer any derogations in place in England.
Implications of non-compliance
Individual employers are responsible for ensuring that staff can work in compliance with EWTD requirements. The penalties for non-compliance are possible Employment Tribunal proceedings by employees, orders for compliance (for example from the Health and Safety Executive in respect of night worker health assessments) and fines. The Department of Health may also be at risk of enforcement proceedings by the European Commission.