24 / 6 / 2016 12.58pm
Latest News - European Court raps Greece over doctors’ working time
The European Court of Justice ruled on 23 December 2015 that Greece has failed to fulfil its obligations under EU law by not implementing a maximum 48-hour working week and not making provisions for minimum periods of rest for doctors. The European Commission brought a legal action against Greece at the behest of ten Greek medical associations, on the grounds that doctors were sometimes obliged to work up to 32 hours consecutively. See the press release.
Travelling time is working time if employee doesn’t have a fixed or habitual place of work says European Court
The European Court of Justice ruled on 10 September (the case of 'Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL') that where workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the working time directive (WTD).
We are considering the implications of this ruling for the NHS. Employers should look carefully at their own local policies in order to establish whether or not they comply with the law as now set out in this decision.
Read the Courts’ press release.
Milestone working time judgment by European Court of Justice
The European Court of Justice has dismissed, for lack of evidence, the case brought by the European Commission against Ireland for alleged failure to comply with the working time directive for non-consultant hospital doctors. This judgement came as a surprise as it is in contrast to the advocate general’s opinion on the case, issued in March, finding that Ireland had failed to fulfil its obligations under certain articles of the directive.
The Court held that the commission has not established that time spent training should be considered as working time, whereas the advocate general had said that by excluding the training hours of non-consultant hospital doctors from the concept of working time, the state was in breach of European law.
We are considering the implications of this unexpected ruling for the application of the WTD in England.
Changing the working time directive
We expect the European Commission to announce whether or not they propose new working time legislation in 2017. Their proposals will be informed by the results of their online public consultation in December 2014 asking how the WTD should be changed, and by their assessment of the impact of the WTD on workers, employers and services across Europe.
The European Commission has recently indicated that they wish to take a broader approach to the entire issue of work-life balance, in particular enabling employees with dependents to combine their working lives and family responsibilities more easily. They are currently consulting on whether further legislation or non-legislative initiatives, such as guidance, at European level would be welcome. See work-life balance for further information.
The NHS European Office responded to the European Commission’s public consultation on how the WTD should be changed. In our response, we highlighted that:
- The directive should be based on the fundamental principle of ensuring workers are safe and fit to work, rather than trying to prescribe detailed rules at European level to cover every possible eventuality.
- Detailed rules on (for example) timing of rest should be decided at national level, to fit in with the way services and training are organised differently in different Member States, whilst respecting staff health and safety.
- Given the requirement to provide around the clock care to patients, whilst protecting healthcare staff from fatigue, the current rules are unsatisfactory and not fit for purpose.
- The current rules have a negative impact on running costs, with some hospitals having to employ additional workers to cover shift patterns.
- Shorter working hours overall and compensatory rest periods mean that doctors in training get less time with supervisors and less experience of performing clinical procedures.
- Quality of patient care can also suffer because of less continuity of care and more frequent handovers.
- There should be greater flexibility in deciding the timing of compensatory rest and this should be done at national level; the important consideration should be whether or not the healthcare worker is fit to work, both for their own safety and of others.
- Member States should be able to decide at national level by legislation or collective bargaining how inactive on-call time should be treated (where the healthcare worker is on call, but actually resting). Our view is that any inactive on-call time should count as rest and that time spent on standby – where the employee is not working, should also count as rest.
- The reference period (length of time used to calculate the average weekly hours) should be set at national level.
- The opt-out clause should be maintained (limit on number of hours per week to be worked).
Download and read the full response the European Office submitted.
The NHS European Office is working with NHS employers and relevant organisations to make a powerful case for change. We have seized this opportunity to tell European decision-makers how the WTD has affected the health service and to suggest how the rules should be changed in the future.
How the NHS European Office is working to make changes
The European Commission’s issued a public consultation (see above) asking for views on how the WTD should be updated. We used this opportunity to influence the commission’s proposed next steps (expected in 2017) to ensure the best possible outcomes for the NHS.
An important element of their preparation is a health sector-specific study on WTD which they commissioned. The study covered a sample of member states (including the UK) looking at the impact of suggested working time options on real-life healthcare scenarios. This provided an excellent opportunity for the NHS European Office, on behalf of the NHS, to suggest practical solutions and to feed into the commission's thinking on the way forward. We met the researchers conducting the study and actively input to this process in order to promote sensible and workable solutions.
It will then be for the commission to decide in 2017 what to do with the results from this, and whether to bring forward a new proposal for revising the directive. In the meantime the directive will continue to apply as it stands. It is moreover clear that the commission will continue to pursue infraction proceedings against member states where they receive complaints.
It is vital that the European Office continues to engage with the commission between now and then to make a positive input to the impact assessment and to influence the upcoming proposal, both directly and also through our involvement with the European social partners (organisations representing health service employers and public sector employers at European level). We took part in a social partner meeting between the European Commission and public sector employers in September 2014 and seized the opportunity to push the case for change.
We emphasised that when working time rules get in the way of providing high quality services to patients, the rules need changing. We have supplied the commission with further concrete examples of how delivery of health services has sometimes been constrained by compliance with over-prescriptive working time rules, and have used the evidence from the taskforce which reported to the Secretary of State for Health in March 2014 (see below) as valuable information to feed into the commission’s impact assessment.
Once the future direction of travel is clear, we expect to work in 2017 to respond to and to shape the commission’s thinking.
NHS European Office provides expert views on changes to the WTD
The NHS European Office responded to the Department of Health’s consultation asking how the European WTD has been implemented in the health service. The office has taken the opportunity to tell them that the current rules are too rigid and that we would like to see more flexibility at national and local level to agree working patterns which support round the clock patient care whilst safeguarding staff from fatigue. The government has co-ordinated responses from organisations in the UK and reported to the European Commission on how effectively the directive has been put into practice, what the impact has been and what changes the UK would like to see in future. Read our response.
Independent WTD taskforce
In April 2014, the European Office issued a statement to coincide with the government’s response welcoming the report of the independent taskforce set up by the Secretary of State for Health to examine the impact of the WTD on health services (especially medical education). In their response, the government welcomed the report’s six recommendations and announced that further work would be done to take them forward. Further reactions to the government’s response have been issued by the Royal College of Physicians and NHS Employers. (NHS Employers and the NHS Confederation, briefed by the NHS European Office, were actively involved in the Taskforce.
Government response to the taskforce report
The government has accepted all of the review’s recommendations and has committed to explore all options including:
- Identifying training time that is not working time: at present doctors must complete training and regular work within the 48 hour weekly limit of the directive unless they opt out - Health Education England will explore if and how some training elements could be separated from work related activities, meaning doctors can have more opportunities to train outside of their regular duties and improve their skills.
- Raise awareness of the voluntary opt-out: The Department of Health will consider ways to encourage more widespread use of the individual right to opt-out of the 48 hour restrictions for those who wish to, and where it is safe to do so. This will allow doctors who want to spend extra time on work related training activities to do so. This would be particularly beneficial in some specialities such as surgery.
- Review working patterns and rotas: Health Education England (HEE) is working on a national programme that will provide support to trusts so they can redesign staff rotas and give doctors more time to access training.
The NHS European Office is now actively involved in supporting NHS Employers and Health Education England to deliver these recommendations.
Action being taken against member states for non-compliance
The European Commission has decided to refer Italy to the EU's Court of Justice for failing to apply the working time directive correctly to doctors in public health services. Currently, Italian law deprives these doctors of their right to a limit on weekly working hours and to minimum daily rest periods.
Under Italian law, several key rights contained in the working time directive, such as the 48-hour limit to average weekly working time and minimum daily rest periods of 11 consecutive hours, do not apply to managers operating within the NHS. The directive does allow member states to exclude 'managing executives or other persons with autonomous decision-taking powers' from these rights. However, doctors working in the Italian public health services are formally classified as managers, without necessarily enjoying managerial prerogatives or autonomy over their own working time.
In addition, Italian law contains other provisions and rules that exclude workers in the NHS from the right to minimum daily and weekly rest. After receiving several complaints, the commission requested Italy to take the necessary measures to ensure that national law comply with the directive in a 'reasoned opinion' sent in May 2013 (MEMO/13/470).
The European Commission has requested Spain to respect forensic doctors' rights to limits on their working hours and minimum rest periods, as required by the WTD (2003/88/EC). Under Spanish law, several key rights contained in this directive, such as a 48-hour limit to average weekly working time calculated over a four month reference period and minimum rest after working extra hours, are not guaranteed to forensic doctors. They are regularly required to perform weekly on-call duty in addition to their normal working time and national law does not guarantee that these extra hours are limited to 48 hours a week on average, calculated over the appropriate period.
Background - social partner negotiations
In November 2011, the European Commission announced the start of EU social partner negotiations to seek to amend the directive. This was a landmark for the European social dialogue, as it was the first time the social partners entered into negotiations to amend a Directive that was not originally agreed via social dialogue.
A series of meeting took place throughout 2012 to negotiate possible changes to the directive, but concluded in December 2012 without reaching agreement.
As a leading member of the negotiating body representing public sector employers across Europe (CEEP), the NHS European Office represented the voice of the NHS in these discussions, providing evidence of the practical difficulties created by the directive and putting forward ideas and proposals for possible changes, notably around provisions on compensatory rest and on call time, which have caused major problems for the healthcare sector where services have to be provided on a 24 hour basis.
For more information on the social dialogue process, and the social partners themselves, please see our social dialogue web pages.
How you can stay involved
The NHS European Office is continuously seeking the views of NHS bodies to ensure that the views we put forward for the revision of the Directive reflect real concerns of the NHS. We also want to ensure our position on this important issue is backed up by hard evidence. Our ultimate goal is to ensure a positive outcome for patients by ensuring that the NHS has the flexibility it needs to deliver round-the-clock services, whilst also safeguarding the health and safety of our staff.
Please send your views and comments to email@example.com