Examination of Witnesses (Questions 20
- 39)
WEDNESDAY 4 FEBRUARY 2004
MR MARTIN
STANIFORTH, MS
JULIE CARNEY
AND MS
SUSAN SMITH
Q20 Baroness Greengross: And also whether
the government has a view on whether they ought to be tightened
up, remembering very well the hours I spent filling out forms
in the initial phase before they were modified. I would like to
know what the Government's view is.
Ms Carney: They were modified because we had
feedback from business and external organisations that the form
filling and record keeping was posing a disproportionate burden.
We would not recommend restoring that record keeping unless we
could see that there was a real, proportionate, added protection
and benefit for workers in doing so. Our best information is that
it would not add value. The key thing is record keeping of which
workers have chosen to work longer hours.
Q21 Baroness Brigstocke: Baroness Greengross
mentioned earlier the fact that in some occupations you might
be working tremendously long hours and then you would have some
time when you were working probably quite a lot less than 48 hours.
I understand the Commission cites harmful effects from long hours
working. How much reliable evidence is there for this? Is there
any evidence to the contrary?
Ms Carney: The evidence is not
conclusive either way on a general impact across sectors. The
Health and Safety Laboratory published a report in March 2003
called "Long Hours Working" which reviewed the
available literature on the effects of long hours working with
regard to fatigue, health and safety outcomes and work/life balance.
The DTI published findings in a report called "Working
Long Hours: A Review of the Evidence", which also summarises
the research in this area. The review of the literature shows
grounds for concern. The research has shown a negative association
between long hours working and health and safety, but it is a
complex area and it does not demonstrate a direct causal link.
The research that is available is often focused on specific occupations
(for example, there is research about long distance lorry drivers
and the medical professions)—or specific people groups (there
was research into Japanese men and it was based on small samples).
This precludes more general conclusions being drawn about direct
causal effects of long hours working on health and safety. There
is stronger evidence that long hours working impacts negatively
on people's work/life balance, but even then the amount of control
and choice over hours can moderate these negative effects on both
work/life balance and health, so choice, control and flexibility
are very important factors. It is also worth noting that the UK
has one of the best health and safety records in the EU according
to Eurostat. For example, the figures on fatal injuries at work
show that only Sweden was better than the UK and on serious injuries
the UK was better than everyone else except Sweden and Ireland.
It is worth noting the health and safety position because that
is the outcome this Directive is aiming to achieve. We also have
the Health and Safety at Work Act 1974 which places a general
duty on employers to ensure the health and safety at work of their
employees. It might be that a level below 48 hours, depending
on the nature of the work and the individual, might have a health
and safety risk. The health and safety inspectors could act on
that and the Health and Safety at Work Act comes into play separate
to the Working Time Directive. And as I mentioned earlier, the
average hours worked are still falling in the UK.
Q22 Lord Harrison: Martin Staniforth will
talk about the NHS but can I invite you to identify other sectors
and other groups of workers who are affected by long hours which
the DTI would take into account? For instance, I have in mind
the tourism and travel industries where there must be a high incidence
of those who work for a concentrated time such that perhaps the
reference hours are overturned. Can you also look at the vexed
question of bigger and smaller firms? Small firms are often under
greater pressure to observe the kinds of Regulations or Directives,
desirable or otherwise. Is that true? Has that been a representation
to you and, if it is, in response to the Commission and in trying
to finesse some kind of sensible answer to all this, will special
attention be given to the small business sector? Are there things
that you can do to help link both desirable results and the thrust
of this Directive?
Ms Carney: The most stark division in types
of work is between men and women. Men are more likely to work
long hours than women. The proportion of full time men reported
working for over 48 hours per week in spring 2003 was 26 per cent
compared to 11 per cent for women. It may be the women are doing
unpaid labour outside of work but that does not count for the
Working Time Directive. The proportion of full time employees
who usually work over 48 hours does differ by occupation and the
industry. We have looked into this. The removal of the opt-out
would disproportionately affect different industries and different
occupational groups. The broad industry sectors where the highest
proportion of full time employees work in excess of 48 hours are
agriculture and fishing, energy and water, construction and transport
and communication. We can provide the Committee with a more detailed
analysis of the industrial sectors separately if that would be
helpful. The occupational groups with the largest proportion of
employees working over 48 hours are managers and senior officials
where it is 34 per cent of full time employees; professionals,
31 per cent; process plant and machine operatives, 28 per cent.
This indicates that there are two main groups of long hours workers,
those who are motivated largely for the financial reward with
contractual hours and paid overtime, and those who do it for other
motivations. The 1998 Workplace Employee Relations Survey showed
that manual workers tended to say that when they did overtime
they did it for the money or because overtime was required as
part of their job. Managerial and professional staff who mainly
did unpaid overtime were most likely to report working overtime
out of commitment to their job, to get the work done or not to
let colleagues down. On the large and small businesses, we looked
into this too. There is some evidence to suggest it is slightly
more prevalent in smaller workplaces from the labour force survey,
which measures workplace size, and the business context to long
hours working, another piece of research we did which gives a
firm size measure. It is not a huge difference. The labour force
survey indicates that in spring 2003 21 per cent of full time
employees in workplaces with fewer than 25 employees usually worked
more than 48 hours. For the next size up, workplaces between 25
and 49 employees, it is 22 per cent. For the third size, 50 to
499, it is 20 per cent with 18 per cent in workplaces with 500-plus
employees. That is the workplace size and not the size of the
firm. Some of these workplaces could be parts of larger organisations.
To add a bit of perspective, the UK's average hours for all those
in employment is similar to the EU average, about 38 hours. We
do have more people working full time who do long hours, but other
Member States have different patterns of employment and different
economies. For example, some have a higher proportion of self-employed
who are not included in the figure and are not covered by the
Directive. As an example, in the UK, 11.2 per cent of workers
are self-employed. In Greece, it is 31.6 per cent. As self-employed
people typically work longer hours, it will distort the overall
figures. In other Member States, some industries have higher percentages
of self-employed. Waiters in Greece are typically self-employed.
They are not in the UK, picking up your point about tourism, travel
and the hospitality sectors. We are not necessarily comparing
like with like when we look at the figures across the European
Union.
Q23 Lord Harrison: I am slightly surprised
by that answer as well. On the question of tourism, I was surprised
you read out six industries which are affected perhaps more than
others but you did omit tourism and I wondered why you did. I
know that the DTI does not have a responsibility for the tourism
industry as it is under DCMS. Nevertheless, whilst what you may
offer about Greece in terms of the self-employed could be true,
it is certainly the case in this country that 1.7 million people
are associated with the tourism industry and I would have thought
they would from time to time have experienced long hours. I would
like an answer to that. Secondly, I am surprised by the answer
with regard to small businesses. It is very interesting to hear
your statistics. I think we will hear something very different
next week when we consult the Federation of Small Businesses.
I wonder how certain you are of that and I suppose, because you
felt there was only a slight difference between small and larger
firms, you did not answer my other question about whether anything
could be done to help small businesses with a particular concern
about having to respond to orders which require people to work
longer hours over a distorted reference period.
Ms Carney: The statistics come from the Labour
Force Survey which is a survey of workers, so it is the individuals
who are reporting the hours they work and the size of the workplace.
I can see if we can look out the statistics for the tourism sector.
It is not coming up as one of the industrial sectors where there
is a high proportion of people doing long hours, but I can see
if our economists can provide that for the Committee. We do look
at all sectors, not just the ones that are sponsored by the DTI.
Q24 Earl of Dundee: What is the latest news
from other European Member States about the opportunity to opt
out and is their support for the fact that we have done it growing
or waning? If you take those two things together, to what extent
are you getting a paradoxical response? I suppose there could
be some States who think we have got it wrong and at the same
time they may be getting keener themselves because they are fed
up with the legislation. How do you from your Department go about
being in touch with what they think and what they want to do?
Ms Carney: We are actively working with other
Member States to ensure we understand each other's positions and
concerns. The Commission have held some discussions with officials
and we have heard their initial views. We also contact them bilaterally.
I am going to Denmark on Friday to talk to my opposite numbers
over there. We are very active in working with our counterparts.
Because the review is fairly recent and the ECJ judgments are
relevant to other Member States' attitude to the opt-out, it is
difficult to get definitive legal positions, but our feedback
says that four of the accession states have implemented the opt-out
for all sectors. The Working Time Directive will apply to them
from 1 May. That is Cyprus, Estonia, Latvia and Malta. Our information
is that France, Spain and Slovenia have now implemented the opt-out
for use in the health sector in order to respond to the new interpretations
following the ECJ judgments. Luxembourg has implemented the opt-out
for use in small restaurants. We understand that Austria, Germany,
Hungary and the Netherlands are planning to use the opt-out to
deal with the problems caused by SiMAP/Jaeger. They
may be planning or actively considering this. It is difficult
to get definitive positions because these are very live issues.
Until recently, the UK was believed to be the only Member State
using or wishing to use the opt-out. Certainly in May last year
that is what the Commission thought. It is clearly not the case
any more. To that extent, support from other Member States could
be growing because we think there is a growing understanding of
the importance of the flexibility provided by opt-out. That is
important for labour markets and at the moment for health services.
Q25 Earl of Dundee: How far, when you consult
with others, do you get the impression that there is a preparedness
to begin, say, over the next year or so, to compare notes on best
practice, to look and see what others are doing in order to evolve
what is the most sensible thing to do? Is that the kind of approach
you find people want to adopt?
Ms Carney: I think all Member States are interested
in talking to each other and working through problems and issues
and sharing best practice. However, that does not mean we want
to do everything the same because we have different economies,
different labour markets, different cultures and historical traditions.
We do want to share our experiences and learn from each other
to develop a legislative way forward that at European level applies
to everyone, but it is also important to allow things to be done
differently in different Member States.
Q26 Earl of Dundee: You say you are going
to Denmark. How far are we likely to bother to notice what the
Danes are doing and how far are they going to notice what we are
doing?
Ms Carney: We would not be going there if it
did not matter to us. Exactly how much meeting of the minds there
is I will be better able to say in a few weeks' time because it
is still fairly early days in discussing what this communication
says and what the Commission are thinking about. This only came
out in January.
Chairman: Mr Staniforth has not had a
chance to intervene but under the SiMAP/Jaeger judgments
he was actually working all this time. What can be done about
the SiMAP/Jaeger judgments? Perhaps Lady Massey
would like to pose the point about the pilots to which you refer
in appendix B of the revised explanatory memorandum.
Q27 Baroness Massey of Darwen: You list
a number of initiatives, pilots, including the use of medical
support workers and new ways of working in mental health and so
on. I wonder where we are with these pilots. Have they been evaluated
yet or are they going to be evaluated? What is the timescale on
this?
Mr Staniforth: If I may take your question first,
my Lord Chairman, we are clear that we need a sustainable solution
to the problems which have been caused to our health service,
other health services and potentially other sectors of the economy
by the SiMAP/Jaeger judgments. To achieve this,
we believe we need to see changes to the Working Time Directive
which will tackle the problems which we and other Member States
have identified, while retaining the central aim of the Directive,
to protect employees from excessive working hours. As Commissioner
Diamantopolou said in her press release, "We also need to
consider how best to define working time, to avoid what is currently
a flexible legislative framework becoming one that creates unnecessary
burdens". We are discussing with other Member States how
we might jointly look at finding a fairer interpretation of working
time and of, enabling compensatory rest to be taken within a reasonable
period, rather than immediately. We are discussing internally
with colleagues how we might frame the proposals for such changes.
We believe that the sustainable solution is on the European level
by changes to the Directive. However, we are clear that it is
pretty well impossible to envisage those changes happening in
time for August 2004 when the Directive bites on junior doctors.
Therefore, we need to look at how we can encourage compliance.
We are working with the NHS to achieve compliance as far as possible
which brings me on perhaps to the question of the pilots because
we have been working with the service over several years to bring
down junior doctors' hours and over the last couple of years specifically
in relation to SiMAP and Jaeger. The pilots are
in various stages of progress and will be reporting between the
beginning and the end of this year. We are aware that in a number
of the pilots the steps they have taken have already enabled them
to achieve compliance with the Working Time Directive. We expect
the sorts of solutions that they come up with to be shared with
other similar organisations that can benefit from them. We are
evaluating the pilots. Manchester University is doing that on
our behalf and will be publishing the findings when they are completed.
I cannot give you a precise date on that because it will depend
on satisfactory completion of the pilots and the completion of
the evaluation work. We have had an initial report on the first
19 pilots and there will be a further report in due course.
Q28 Baroness Howarth of Breckland: Clearly
there is innovative thinking going on to try to tackle this issue,
but I wonder if you have any sense of the effect of this not only
on the NHS budget but on consequential targets in terms of meeting
the programmes in the NHS. I am interested in what you think the
effect will be on the shortage of junior doctors and the ongoing
effects for other countries in terms of us drawing in other doctors
if we have to have more staff from places like Africa and Asia,
where there is already a shortage. The global effect is even greater
than the local effect.
Mr Staniforth: On costs, the precise costs of
implementing the Working Time Directive will really depend on
the way in which it is implemented in individual NHS trusts and
individual units. We are quite clear there is not a one size fits
all solution and therefore to attempt to identify a global cost
based on one model is probably not a fruitful avenue to pursue.
As far as the impact on budgets is concerned, clearly there is
substantial growth of over seven per cent a year this year and
for the next four years for the NHS budget, so we are looking
at managing the Working Time Directive implementation as part
of the overall modernisation of the NHS, within the very significant
additional resources that we have made available to the service.
Specifically within that, we have earmarked some £46 million
over three years to help support implementation of the Working
Time Directive in developing more medical roles, to reduce dependence
on medical out-of-hours cover, to develop training programmes
and new models of service delivery. We have put some money in
specifically to help organisations who are looking at innovative
solutions. In terms of the targets, I think it is fair to say
that we believe that as we modernise the service that will help
the NHS in delivering the targets that have been set for it over
future years.
Q29 Baroness Howarth of Breckland: One of
the criticisms that has been made about our health initiatives
is that funding has gone into increased staffing costs and indeed
that is what you are saying in your answer. A substantial amount
of funding is being placed for the Directive but that is really
going into staffing costs. What other bits of the health service
will have consequential targets possibly not being met?
Mr Staniforth: The bulk of the additional money
will go into staffing because 70 per cent or so of health service
budgets are staff costs. I do not anticipate that delivery of
the Working Time Directive should impact on the ability of the
health service to deliver the targets that have been set for it.
In some areas, reorganisation of services and changing the way
in which we provide them may enable individual organisations to
meet those targets. We have been increasing the number of junior
doctors in recent years. We have achieved a target of a further
1,000 specialist registrars well ahead of our schedule and growth
is continuing. In the current financial year, 2003-04, we are
distributing central funding for 400 more training opportunities
for junior doctors and have given trusts scope to create up to
another 1,500 specialist registrar posts through local funding.
We are increasing the number of junior doctors and targeting those
particularly in areas where there may be potential difficulties.
However, I do not think that increasing doctor numbers is of itself
a solution to the Working Time Directive problems for a number
of reasons. One, we would find it very difficult to recruit those
doctors without potentially having negative impacts on other countries,
both developing and less developed, and cutting against our own
ethical recruitment policies. Second, it would probably be rather
an unsatisfactory job in some cases for junior doctors if we simply
replicate the existing pattern of service but spread it over more
doctors. There would be potential implications for the quality
of training which is why we are looking with the service at different
ways of organising the service so that we can provide cover through
24 hours a day, seven days a week, but not necessarily in the
way that we have provided that in the past through very heavy
use of junior doctors, so that we can use that resource to best
effect.
Q30 Lord Colwyn: Historically, junior doctors
are always expected to work long hours. I only narrowly avoided
it myself and changed to dentistry. When the Directive comes in,
in August 2004, it is a 58 hour working week, not a 48 hour working
week. The 48 hour working week is not due in until August 2009
or even possibly three years after that. Is that to give some
time or is it going to be extremely difficult?
Mr Staniforth: It is a phasing in process to
enable us to move smoothly to the 48 hour week without disrupting
services unacceptably. It will enable us to ensure that we have
the service organisation properly in place. Clearly, the problem
which the SiMAP/Jaeger judgments have caused us
is that, where we thought we were aiming at 56 hours' working
and potentially some additional resident on-call hours, those
all now have to be contained within a 56 hours working week. That
is rather a sharper reduction in hours than the NHS was originally
planning for.
Q31 Baroness Greengross: I read some of
the background papers and some of the innovations are rather good,
I think, but I did not read any attempt to tie in with what the
DTI people have been talking about. Is there room for exceptions
in the NHS because of the particular role that junior doctors
or doctors generally play? Is there a possibility of paying them
more if they do more hours, which did not appear on the papers
I read? I wondered if that was part of your innovation and if
it could possibly be a negotiating tool. I am sorry if this is
very simplistic and you have obviously thought of it all. It occurred
to me that we did not read about that.
Mr Staniforth: In terms of being able to opt
out of the requirements?
Q32 Baroness Greengross: Yes.
Mr Staniforth: From 1 August when junior doctors
are covered by the Directive, they will be able should they choose
to opt out of the working hours limits. There could be no question
of coercing or requiring them to opt out. That would be very much
an individual choice.
Q33 Lord Colwyn: 48 or 58?
Mr Staniforth: It would be initially out of
the 58.
Q34 Baroness Greengross: And paying them
more? Overtime?
Mr Staniforth: The payment structure for junior
doctors already takes account of the hours they work outside the
normal working week. I certainly do not think I would want to
get into detailed discussion about how one might tackle that particular
issue.
Q35 Baroness Brigstocke: I was interested
in what you were saying about better recruitment of junior doctors
but that is just in their junior years. It will be interesting
over the years to find out how many of them leave and if there
is indeed any effect for senior doctors. We have talked exclusively
about junior doctors so we have not talked about senior doctors
and we have not yet talked at all about all the other essential
workers in the National Health Service. My own daughter worked
as a sister in accident and emergency in a central London hospital
for nigh on 20 years. I wonder what will be done if there are
any plans for looking at other members of the National Health
Service, the nurses, carers, the people who do all the supplementary
work. They could also be in the research departments if they are
asked to look at something in a hurry. There are enormous numbers
in the National Health Service.
Mr Staniforth: That is certainly true. There
are potential impacts for senior doctors in two respects. Some
of the new ways of working that are being developed may mean that
senior doctors will be expected to change the way in which they
have traditionally worked to accommodate changes to junior doctors'
hours, for example, by introducing much more of a consultant-led,
and delivered service so there may be some implications there
for the way in which they work. Also, where senior doctors work
non-resident, on-call rotas, which I believe many do, if they
are called into work during that period, they may be entitled
to immediate compensatory rest under the provisions of the Jaeger
judgment. There are implications and that is another reason why
we want to make sure that particularly with the Jaeger
judgment we have some changes that allow proper facilities
for compensatory rest.
Q36 Baroness Brigstocke: If you are calling
in your consultant, say, late at night, what happens to his list
the following day? It could cause great disruption.
Mr Staniforth: That would be a potential problem
with the requirement for immediate compensatory rest because it
could disrupt the next day's work schedule. That is why we are
looking for a slightly more flexible approach to taking compensatory
rest. We do not deny that it should be taken as quickly as possible,
but in order to keep the NHS running effectively we think taking
it almost immediately, which could disrupt the next day's schedule,
is potentially quite disruptive. As far as other groups of staff
are concerned, I am not aware of any significant issues for other
major staff groups, but we are looking particularly at areas in
social care where there may well be people who required to be
on-call. We are trying to get a better handle on the implications
of the judgments for that area. We know that there are some non-NHS
sectors which are potentially affected by this and, with DTI colleagues,
we will be attempting to get a fuller picture of the implications
of the judgments for those groups. We will continue to look at
the impact across the service.
Q37 Baroness Brigstocke: Including nurses?
Mr Staniforth: Including nurses.
Q38 Baroness Brigstocke: Particularly those
in accident and emergency departments where suddenly there is
a train crash or whatever.
Mr Staniforth: It is possible that the Jaeger
judgment on compensatory rest may have an impact in certain circumstances
and we will be doing our best to get as good a handle on the implications
as we can. We have been concentrating on junior doctors because
they are the largest, most clearly focused group where we have
problems.
Chairman: There probably will be quite
a lot of other consequences. Lady Howarth knows a lot about social
services and care.
Baroness Howarth of Breckland: Clearly
you are looking at residential workers and I think domiciliary
care is coming to the fore in terms of working hours and we would
be interested in time to hear some of the come back in some of
those areas.
Q39 Lord Harrison: On the pilot studies,
some of which have been on work patterns, is there a problem?
It is very welcome that such pilots are taking place, but there
must be a concern that standards could decline or that there will
be a greater requirement to finance some of the results on shifting
these patterns so that you get a better match of what is needed
and requited within the National Health Service and the staff
that is there to manage. Mr Staniforth, you have a very reassuring
approach. You have described very well what is being done in terms
of the pilots, the money that has been given by the government,
the bringing on of new junior doctors and so on. You have also
declared that these two judgments make things sharper, that compensatory
rest is not going to be managed by orders of this year and that
we are only going to arrive at 58 hours, not 48 hours. Let me
put it to you that, as good as the Government has been at trying
to repair the gap, we are heading for an almighty disaster. We
are talking about the largest workforce in the United Kingdom.
These judgments have fallen with quite devastating consequences,
were we to fulfil them in terms of the NHS budget, or else we
are not going to and we are going to have to default on a directive
which many will say we have defaulted on for a number of years.
Mr Staniforth: I certainly would not wish to
appear too reassuring or complacent. We are very well aware that
the judgments have made the issue much sharper than it was before.
There will be a number of trusts which will find it very difficult,
if not impossible, to be fully compliant by August. That is exactly
why we are pushing for amendments to the Directive to enable us
to continue to organise and manage the health service effectively.
I certainly would not want it to be thought that what we are doing
is going to solve all our problems by 1 August. It will help to
mitigate the potentially worst implications of the SiMAP/Jaeger
judgments but we do not believe that those judgments should go
unamended in the terms of the Directive because we believe that
they have potentially very significant implications for the health
service. We certainly do not want to see major changes in the
health service driven solely by this.
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