The European Working Time Directive (WTD) will cease to apply to the United Kingdom at the end of the current transition period (31 December 2020). However, the UK's Working Time Regulations which implement the EU Working Time Directive will continue to apply unless and until they changed by UK law.
Changing the working time directive
Prior to the UK's exit from the EU on 31 January 2020, the European Commission had issued a guidance document interpreting all the legislation and case law to date on the Working Time Directive. The Commission's guidance document was drawn up using responses to its public consultation in May 2015, as part of its broader approach to issues of work-life balance.
The NHS European Office responded to this consultation on behalf of NHS Employers, which you can read here.
In its response, the European Office 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 things such as 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).
Once the current transition period comes to an end and should the UK government decide to make changes to the existing Working Time Regulations to suit the post-Brexit world, the recommendations above could be fed though to help shape future UK working time legislation.