- What is the Working Time Directive?
- Who does the WTD cover?
- Can WTD be ignored?
- How is compliance with WTD measured?
- What about on-call time – is this work? (the impact of the SiMAP and Jaeger cases)
- Does all on-call time count as work?
- What are the consequences for employers of failing to achieve compliance for junior doctors by August 2009?
- In which areas do the biggest challenges exist?
- What is a derogation?
- What are the implications if an employer is granted derogation?
- Is there extra funding support for WTD?
- What is the implication of WTD for the number of junior doctor training posts?
- If the number of approved training posts is not increasing what are the implications for the number of consultants?
- What is the implication of WTD for time spent training?
- What will happen to junior doctors’ pay?
- What is pay protection and when can it be applied?
- How are junior doctor rotas re-banded and who checks them?
- Can junior doctors ‘opt-out’ of the 48 hour requirement?
- Should services be planned on junior doctors working no more than 48 hours a week?
- Are ‘internal locums’ allowed?
- How do WTD limits affect work for locum agencies or other employers?
- What is the impact of extra hours, under an ‘opt-out’ or otherwise on NHS medical indemnity?
- Where can I find examples of best practice and advice?
- What other support is available?
The Working Time Directive (WTD) is EU legislation intended to support the health and safety of workers by setting minimum requirements in relation to working hours, rest periods and annual leave. The Directive was enacted into UK law as the Working Time Regulations from 1 October 1998.
The main features are:
- an average of 48 hours working time each week, measured over a reference period of 26 weeks for doctors (unless an individual chooses to ‘opt out’ of this requirement)
- 11 hours continuous rest in 24 hours
- 24 hours continuous rest in 7 days (or 48 hrs in 14 days)
- a 20 minute break in work periods of over 6 hours
- 5.6 weeks annual leave (pro-rata for part-time staff)
- (for night workers) an average of no more than 8 hours work in 24 over the reference period.
Notes:
• If a rest break has to be interrupted or delayed (eg to ensure continuity of care or in an emergency), compensatory rest must be taken immediately after the end of the working period, except in very exceptional circumstances. The amount of rest should be agreed.
• An individual may exercise the right to ‘opt out’ of the average 48 hours working week but the rest and leave requirements must be met – there is no ‘opt-out’ from the minimum rest and leave required.
• The reference period of 26 weeks may be extended for doctors other than junior doctors in training by local collective agreement. For junior doctors in training the WTD specifies a 26 week reference period.
The WTD has applied to the vast majority of employees in EU member states since 1998, with a few exceptions including junior doctors in training. Consultants, doctors outside training and most other NHS staff have been subject to the WTD since 1998. Details of the general implementation of the WTD in the NHS, and the national collective agreements reached, are set out in HSC 1998/204: Working Time Regulations implementation in the NHS.
In 2004, the WTD provisions extended to junior doctors, whose maximum average working hours had to be reduced to 56 by August 2007 and 48 hours from August 2009.
No. The WTD cannot be ignored. It is a legal requirement under EU and domestic UK legislation (the Working Time Regulations 1998, as amended). Employers are obliged to comply with all of its requirements, and employees entitled to the protections it affords.
Measurement and monitoring of the 48 hour working week should be over a reference period of 26 weeks for doctors (unless a local collective agreement has lengthened this period for doctors other than junior doctors in training). The reference period is 17 weeks for most other workers. For junior doctors in training it is a fixed 26 weeks. Employers need to take reasonable steps to ensure that the working hours of all medical staff are compliant over the agreed reference period.
It is generally accepted that continuous monitoring is not an achievable method of assessing compliance, except for individual cases. For junior doctors in training, employers already take snapshot data to measure both WTD and New Deal compliance, by diary-carding over a two week period twice a year. This should measure not only hours worked but that rest breaks are being achieved, and/or adequate compensatory rest provided.
The publication "How many hours do your workers work?" by the Department for Business Enterprise and Regulatory Reform provides further guidance on employers’ general responsibilities for monitoring WTD compliance.
5. What about on-call time – is this work? (the 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 within the workplace but is actually asleep counts as working because they are required to be on site).
In Jaeger, the ECJ also ruled that, in all but exceptional circumstances, 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.
The Department of Health page on the Jaeger judgement provides further advice on these cases.
Advice on what might constitute ‘exceptional circumstances’ for delaying the provision of compensatory rest, where WTD required rest breaks have been missed, can be found in a Department of Health information note.
6. 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 by the employer to be resident or present within the workplace 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.
Individual employers (Trusts, PCTs and practices) are responsible for ensuring that junior medical staff can work in compliance with WTD requirements from August 2009. The penalties for non-compliance are, as for other staff, 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. It is possible in the case of junior doctor training posts that these may in future be de-recognised for training where they remain non-compliant.
Hospital services delivering 24-hours immediate patient care, some supra specialist services and small, remote and rural units have most difficulty in delivering an average working week for junior doctors in training of 48 hours or less. The overall aim is to ensure that, consistent with patient safety, the maximum number of services where doctors have emergency, acute responsibilities are supported to achieve compliance. For the small number that may require additional support the Department of Health has allowed ‘derogation’.
A derogation allows an EU member state more time and flexibility to implement the WTD for junior doctors for up to two years (2011) and, exceptionally, three years (2012), where there are specific problems. There is no derogation in respect of the rest and leave provisions of WTD.
The UK has sought a derogation that can be applied to doctors in training who have duties in services that are delivering 24-hour immediate patient care, in some supra specialist areas or in small, remote or rural units. These services can be enabled, through amendments to the UK Working Time Regulations, to plan services with up to a 52 hour week for up to two years and, exceptionally, three years. Trusts must continue to work to achieve 48 hour compliance. Employers seeking permission to operate a 52 hour week under the derogation have to make application to the Department of Health via their SHAs, who will provide advice on guidance on the format of that application.
Derogated services can plan to operate with up to a 52 hour average week for junior doctors for a period of up to two years and, exceptionally, three years. They will have to achieve full compliance with 48 hours for junior doctors by August 2012 at the very latest.
In 2008/09, £110m was included in PCT allocations to support WTD compliance. This was increased to £310m in 2009/10. To support employers, the tariff uplift for 2009/10 reflected £150m funding for WTD. As some specialties face particular challenges a further £50m was been allocated to PCTs to support changes needed in the 24/7 specialties for trained doctor solutions, particularly in paediatrics and obstetric services. SHAs have been asked to report on how this money is spent.
There are no plans to change the number of junior doctor training posts in the light of WTD. Approved training post numbers are based on the UK’s future anticipated need for trained doctors.
The implication for consultants and other doctors is that services need to be redesigned. Consultants and other doctors may have to become more involved in some of the work previously undertaken by juniors, particularly out of hours. To support this the number of doctors in the NHS, including consultant and other grades, has continued to grow, increasing by 4.3% in 2008. Hospital@Night, new roles and other service changes are essential to managing services within each employer’s resources and number of doctors.
14. What is the implication of WTD for time spent training?
The NHS has been steadily changing the way that junior doctors work and train so that their expertise is applied where needed, and that more of the work they do contributes to their training, rather than simply being on-call. Better-structured and managed training programmes for doctors go hand-in-hand with the WTD in ensuring both quality of care for patients and quality of training for junior doctors. Ensuring that NHS doctors are well rested is critical to assuring patient safety and providing quality care. These are primary objectives of WTD.
Medical education and training has undergone significant modernisation in the last decade with new competency based curricula and greater use of e-learning, simulation, and the introduction of skills laboratories. These developments have enabled doctors in training to acquire skills in reduced training hours whilst enhancing their practice under supervision. The challenge is to ensure all training opportunities are maximised and trainees supported to reach the required standards.
To ensure that training standards are maintained for the future the Secretary of State has asked Medical Education England (MEE), and independent advisory body, to commission a study on WTD and training, and advise on any issues arising. An earlier report from the Medical Programme Board discusses issues and possible solutions.
There have been no changes to basic pay for junior doctors in training. However, introduction of the 48 hour working week will mean that any supplementary banding payment should be no higher than 50% of actual salary, reflecting hours that are above 40 but below 48 per week on average, provided that the New Deal hours limits and rest requirements are adhered to. Junior doctors working in posts to which a derogation has been applied, and who are required to work more than 48 hours per week, will need to receive an appropriate banding based on the hours contracted (up to an average of 52 hours per week).
For junior doctors receiving a banding payment, pay protection only applies when a new rota is implemented with a changed band during an existing period of employment, or where a doctor had been formally offered and accepted a contract of employment with a new employer at a higher band, prior to a change in that rota’s banding. In these circumstances a doctor will continue to be paid at the rate of the previous banding, as contractually agreed, until the end of their contract with that particular employer. For more information see NHS Employers guidance on pay protection.
There is a formal process for re-banding junior doctors’ rotas, which is laid out in the Terms and Conditions of Service for doctors in training. As part of this a third party - the Regional Action Team or their successor bodies – should provide the final approval for all changed rota bandings to confirm that the rotas are both New Deal and WTD compliant. The TCS can be accessed here.
As with other employees, all doctors can ‘opt-out’ of the maximum 48 hour working week, including junior doctors in training. However this must be agreed in writing and no employee can be forced to work more than 48 hours (except in the case of posts to which a derogation has been applied in which case the limit is 52 hours). Employers must keep a record of employees who have exercised their right to ‘opt-out’. Where a doctor has agreed in writing to work additional hours, there is no breach of the WTD.
Employers will need to consider if it is desirable for an employee to ‘opt-out’, and whether there is a service need they can safely meet. 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. Even if they ‘opt-out’ junior doctors’ contracts also expressly limit them to a maximum 56 hours work a week under the New Deal.
Subject to these requirements agreed additional duties are not indicative that the WTD is being breached.
The WTD makes clear that employees, including junior doctors, cannot be required to work more than the average of 48 hours a week over the reference period (usually fixed at 26 weeks for doctors), They can ‘opt-out’ of this limit if they wish but if they do so they must be able ‘opt-in’ again, with notice. As junior doctors change posts frequently (and recruitment must not be influenced by whether a doctor is prepared to ‘opt-out’) it is safest for planning purposes to assume that incoming junior doctors will want the 48 hour limit applied – and to plan services, rotas and training on that basis. The exception would be where a derogation has been applied in which case services, rotas and training may be planned on the basis of a 52 hour week.
Where doctors are willing to opt-out any extra hours they offer might be used (for junior doctors up to the limits of the New Deal) to provide occasional cover rather than a regular commitment. Employers will also want to be mindful of any impact of extra hours on a junior doctor’s banding.
While junior and other doctors are expected to be able to cover brief absences of colleagues under their normal duties, where this is not possible it is the employer’s responsibility to make alternative arrangements, or seek the engagement of a locum. All hours of work for the employer count towards WTD limits, including locum work for that same employer. Doctors can 'opt-out' of the 48 hour limit to perform additional hours but they and their employers should ensure that this is agreed in writing and that total hours worked across all employments are safe and appropriate.
For junior doctors it is a contractual requirement that they only work up to the overall 56 hour New Deal maximum across all their employments, including locum work. WTD rest requirements must still be met.
It is also important to remember that employees, including junior doctors, have no right to work additional hours just because they ‘opt-out’. Any extra work offered has to be because an employer has a requirement that the employee can fulfil.
It is very clear under WTD that no single employment can exceed the average 48 hours work per week, unless an individual enters into a written agreement to ‘opt-out’. The exception being any posts to which a derogation has been applied in which case a maximum of 52 hours work per week is then allowed.
What is not clear under WTD is whether the 48 hours average working time (or 52 for any derogated posts) applies just to an individual employment contract or, where an individual has more than one job, across all of their employments. This is one issue that EU member states were negotiating in order to clarify the rules, but without reaching any agreement.
However, it is advisable for an employer to take reasonable steps to ensure that employees are aware of the limit and able to achieve compliance by enquiring about any other employments (see HSC 1998/204 guidance). Such employment may be medical or non-medical, and within the NHS or independent practice or elsewhere . Employers should seek to satisfy themselves that any additional hours worked can be performed safely and without detriment to the substantive contract with the main employing organisation.
For junior doctors the model contract includes (at paragraph 10) a requirement not to breach the New Deal limit of 56 hours per week across all employments, including locum work.
Within the NHS junior doctors can therefore ‘opt-out’ of the average 48 hours per week WTD requirement but where they do must work no more than 56 hours per week under all their contracts, including any additional work they do. View NHS Employers model contract.
All staff, junior doctors included, are indemnified by their employing organisation for all contracted clinical activities undertaken on behalf of the NHS. This includes those in any additional hours (including any hours worked under an “opt out” agreed between the doctor and their employer).
The NHS Litigation Authority clarified in its circular European Working Time Directive (EWTD): CNST Indemnity for clinicians working in excess of EWTD limits that: “Any activity carried out by clinicians which would be the subject of an indemnity if carried out during “allotted” hours will be treated no differently under our schemes because that work was being done outside those hours.”
There is a wealth of best practice material and information on the Healthcare Workforce website at http://www.healthcareworkforce.nhs.uk/index.php
This includes details of Hospital at Night schemes, rota management, new ways of working, approaches to managing change and top tips. However circumstances will vary and employers will need to tailor approaches to their particular requirements.
Every SHA has a named WTD lead who can advise on support available locally. See the healthcare workforce FAQs for a list of contacts.