Memorandum by the British Medical Association
(BMA)
INTRODUCTION
1. The BMA is the professional association
and trade union for doctors, with more than 125,000 UK members.
As the trade union recognised by the Government for negotiations
on the terms and conditions of service for all doctors employed
in the NHS, the BMA is responsible for reaching agreements with
the Department of Health and health departments in the devolved
nations on arrangements to implement the requirements of the European
Working Time Directive (EWTD) in respect of employed doctors.
BACKGROUND
General Practitioners (GPs)
2. The majority of GPs are independent contractors
and therefore the Directive does not apply. However, with an increasing
number of salaried GPs employed by practices and primary care
organisations (currently around 8,000 but likely to increase further
with the introduction of the new contract), implementation of
the Directive will become more of an issue. The Directive does
of course apply to practice staff.
Junior doctors
3. Agreement was reached in May 2000 between
the European Parliament and the Council of Ministers on the arrangements
and timetable for doctors in training (also known as junior doctors)
to be included within the Directive. The Directive will be applied
to junior doctors as follows:
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| Date | Deadline
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| June 2000 | Timetable set to incorporate juniors into the directive
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| August 2004 | Interim 58 hour maximum working week
| Rest and break requirements become law |
| August 2007 | Interim 56 hour maximum working week
| |
| August 2009 | Deadline for 48 hour maximum working week
| This may be extended by another interim of 3 years at 52 hours if exceptional circumstances apply
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Many of the concerns set out in the evidence attached are
especially applicable to junior doctors.
4. Historically the NHS has relied very heavily on the
service input of junior doctors. Traditionally cover at night
has been provided by junior doctors who remain resident in the
hospital providing care to the patients whilst the consultant
has been on-call from home. Established working patterns for junior
doctors include resident on-call where the junior doctor will
work a full day, remain in the hospital over night on-call from
a room in the building and then work a full day the next day.
This working pattern involves 32 hours resident in the hospital
which will count, in total, to the weekly hours limit prescribed
by the Directive after August 2004. This working time accounts
for only a day and a half of cover in the hospital yet will count
as over half of the weekly hours limit from August 2004 and two
thirds of the final 48 hour limit.
5. The Junior Doctors Committee has calculated that from
August 2004 the hours of junior doctor cover that will be lost
each week as a result of the implementation of the EWTD will be
up to 213,000, equivalent to 3,700 junior doctors working an EWTD
compliant 58 hour week. Following the application of the 48 hour
limit, the hours of junior doctor cover that will be lost each
week as a result of the implementation of the EWTD will be between
208,296 and 476,638 equivalent to between 4,300 and 9,900 junior
doctors working an EWTD compliant 48 hour week. This is the main
factor that makes the EWTD for junior doctors such a huge issue.
6. There are a number of pilots being undertaken by the
Department of Health examining new ways of working to aid the
implementation of the EWTD. However, proposals for these pilots
were not invited until April 2002, almost four years after the
implementation of the EWTD and less than two years before the
extension of the Directive to junior doctors. The final results
of these pilots will not be available until later this year and
are unlikely to be in time to aid the implementation of the EWTD
for junior doctors.
Senior hospital doctors
7. The EWTD, came into force on 1 October 1998 for all
senior hospital doctors; junior doctors were excluded. The BMA
and the Department of Health negotiated a collective agreement
for all senior hospital doctors employed under national terms
and conditions of service, including: consultants, associate specialists,
staff grade doctors, hospital practitioners and clinical assistants,
concerning the implementation of the 48 hour limit on working
hours per week contained in the EC Working Time Directive.
8. The weekly 48-hour limit on working hours is a problem
for services provided by senior hospital doctors. A BMA survey
of consultants in January 2003 showed that 77 per cent of consultants
work more than 50 hours per week and that 46 per cent work more
than 60 hours per week.[1]
9. A recent BMA survey of staff and associate specialists'
working hours found that 35 per cent of these grades of doctors
are working more than 48 hours per week. We suspect that many
of these doctors have not signed agreements opting out of the
48-hour weekly working hours limit although we are aware that
there are trusts that apply pressure to doctors to formally opt
out.
THE EC CONSULTATION
10. The recently launched European Commission Consultation
on the EWTD concentrates on five main issues:
The length of reference periods.
The definition of working time.
The conditions for the application of the opt-out.
Measures to improve the balance between work and family life.
How to find the best balance of these measures.
11. The BMA perceives the key issues to be the length
of reference period, the definition of working time in light of
the SiMAP and Jaeger judgments in the European Court
of Justice and the application of the opt out. The BMA also has
concerns about the application of compensatory rest and would
welcome more definitive guidance on, amongst other points, whether
compensatory rest should be taken during working and therefore
paid time.
12. Outlined below is the legislation as it currently
stands for each of the key points in the consultation (in italics)
followed by the BMA position on how the legislation should be
amended.
Reference period
Under the Regulations[2]
as they currently stand the reference period for the 48 hour working
week for medical staff is a rolling 26 week period or the period
elapsed since he started work for his/her employer if less than
26 weeks. This is extended from the standard 17 week reference
period in the Directive by Regulation 21 which allows the use
of a 26 week reference period in special cases including:
"where the worker's activities involve the need for
continuity of service or production, as may be the case in relation
to services relating to the reception, treatment or care provided
by hospitals or similar establishments, residential institutions
and prisons".
The amendment Regulations[3]
provide for a different average working week for doctors in training.
From 1 August 2000 until 31 July 2004, the average must not exceed
58 hours; from 1 August 2007 until 31 July 2009, the average must
not exceed 56 hours. The amendment Regulations provide for a rolling
reference period of 26 weeks, or the period which has elapsed
since the worker started work, if that period is less than 26
weeks.
The Regulations also provide for the reference period
to be extended to a period not exceeding 52 weeks by a collective
or workforce agreement where it is justified by objective technical
reasons or for a reason concerning the organisation of work.
13. The BMA considers that the reference period should
be set at 26 weeks or the period elapsed since starting in post
if that period is less than 26 weeks.
14. It is important to note the difference between the
wording of this paragraph and the existing legislation. Doctors,
in particular junior doctors are in the unusual position that
they often move/rotate on a regular basis to other posts, often
within the same trust. These different posts can be with the same
employer and as such would be classed under the Regulations as
they currently stand as being part of the same employment for
the purposes of the reference period. However these posts in a
rotation, although in the same trust, can be in different specialties
or even different hospitals. Specifying that the reference period
should be restricted to the length of post where this is less
than 26 weeks aims to avoid the situation where, if a rotation
includes a low intensity post; then the next post is allowed to
exceed the hours limit so that, averaged out over the whole period,
the limit is not breached. This is an argument that has already
been used by some trusts in an attempt to legally breach the working
time limit.
Opt out
Under the Regulations[4]
individuals have the ability to opt out of the 48 hour week by
entering into an opt out agreement with their employer. An opt
out must be agreed in writing, it may apply to a specified period
or apply indefinitely and subject to any provision in the agreement
for a different period of notice (not exceeding three months),
can be terminated by the worker by giving a minimum seven days'
notice to his/her employer in writing. The employer is required
to maintain up to date records of all workers who have opted out.
15. The BMA has no objection to maintaining the opt out
for those doctors able to determine their own working hours, however
the BMA considers that there are a number of provisions that must
be met if the opt out remains a part of the legislation; any opt
out must be truly voluntary and no undue pressure or coercion
should be placed on doctors, particularly doctors in vulnerable
positions, to work outside the EWTD hours and rest requirements
and under no circumstances should an opt out be a necessity for
a post or form part of any contract.
16. The BMA supports the provision in Article 18 of the
EWTD[5] that:
"no worker is subjected to any detriment by his employer
because he is not willing to give his agreement to perform such
work".
Definition of working time
Under the Regulations as they stand currently, the definitions
of work and rest are clearly defined and there is no provision
for time to be anything other than work or rest. Working time
in relation to a worker is defined as:
(a)
any period during which he/she is working, at his/her employer's
disposal and carrying out his/her activity or duties;
(c)
any additional period which is to be treated as working time
for the purpose of these Regulations under a relevant agreement.
The SiMAP judgement[6]
and subsequently the Jaeger judgment[7]
clarified the definition of working time to include the time when
doctors are obliged to be present and available at the workplace
with a view to providing their professional services (on-call).
Even if doctors are sleeping on call, providing they are at work,
that time has to be regarded as coming within the ambit of the
performance of their duties and so counts as working time for
the purposes of the Directive. The judgments also state that working
time is mutually exclusive to rest and therefore any period which
doesn't meet the requirements listed above to be classed as working
time is by definition rest.
The Regulations deem relevant training as working time
except where the education or training is provided by an educational
institution or a person whose main business is the provision of
education or training, and which is provided on a course run by
that institution or person. However the Regulations do not expand
on this point further to define what this "education/training
time" should be classed as if not working time. The problem
that arises is that elsewhere in the Regulations a rest period
is defined as any period which is not working time. Hence if the
time spent on education/training meets the conditions that allow
it not to be counted as working time, it could be counted as rest
for the purposes of the Regulations.
17. The BMA is of the opinion that brief periods of rest
in a hospital on-call room are entirely different to periods spent
sleeping in one's own bed and consequently should not be classed
as equivalent for the purposes of the Regulations. The BMA therefore
agrees with the definition of working time that defines time spent
compulsorily resident in hospital as working time.
18. The BMA also agrees that time spent not working whilst
non-resident on call should not be classed as working time and
therefore could be counted as rest for the purposes of the Directive.
However note that all time spent working (including telephone
calls) whilst non-resident on-call should count as working time
from the point of interruption to the point that the individual
returns to rest.
19. The BMA considers it essential that all education/study[8]
should be counted as working time and as part of the normal working
week for the purposes of the Directive.
Compensatory Rest
The Regulations require that individuals receive a daily
entitlement of 11 hours continuous rest where a day is a 24 hour
period beginning at midnight. The UK has derogated from this provision
but must provide an equivalent period of compensatory rest[9]
where it is not possible to provide the full period of continuous
rest. The Jaeger judgment in the European Court of Justice
examined the provision of compensatory rest and stated that:
"equivalent periods of compensatory rest made up of
a number of consecutive hours corresponding to the reduction applied
and from which the worker must benefit before commencing the following
period of work".
The requirement that the period of compensatory rest should
be taken before commencing the next period of work is not explicit
in the Directive.
20. The BMA has concerns about how compensatory rest
should be implemented. The legislation as it currently stands
provides no guidelines to assist employers/employees in determining
what counts as "equivalent" rest.
21. The BMA on behalf of senior hospital doctors reached
an agreement with the Department of Health to make use of the
derogation in the Regulations[10]
to allow compensatory rest to be taken by employees where they
are not able to take the rest breaks as specified in the regulations
eg 11 hours rest in every 24 hours. The BMA guidance on implementing
the Directive stated that where interruption to the rest is significant,
doctors poor, with many trusts resisting because of the lack of
a clear definition of compensatory rest in the Regulations. The
BMA has repeatedly asked the Department to ensure trusts implement
the agreement in respect of compensatory rest according to the
agreed interpretation. The Department have taken no steps to do
so.
22. The BMA considers that the requirement made in the
Jaegar judgment that compensatory rest should be taken before
returning to work has huge service and workforce planning implications
and is likely to be unworkable and in most cases unnecessary.
Account should be taken not just of the quantitative aspect of
rest but also of the qualitative aspect. To require compensatory
rest to be taken before the next period of substantive work would
effectively end the idea of non-resident on-calls where there
are any plans for fixed commitments the following day—even
if adequate qualitative rest has been obtained.
23. The issues which need to be considered are the timing
of compensatory rest and whether it should be taken during the
normal working week; whether compensatory rest should be paid
and whether compensatory rest should count as working time for
the purposes of the EWTD.
The consequences of the SiMAP and Jaeger judgments of the European
Court of Justice (ECJ) on on-Call requirements
The SiMAP and Jaeger judgments dealt specifically
with doctors who were working resident on-call although some comparisons
were made in the Jaeger judgment with non-resident on-call.
The consequences for on-call work of the judgments are threefold:
— All time spent resident in the hospital, even
if sleeping, is to count as working time for the purposes of the
directive (SiMAP and Jaeger).
— When non-resident on call, only time linked
to actual work should be regarded as working time for the purposes
of the directive (Jaeger) purposes of the directive (SiMAP
and Jaeger).
— Compensatory rest must be taken immediately
following the period of work which it is supposed to counteract
ie before commencing the next period of work (Jaeger).
24. The main consequences of the SiMAP and Jaeger
judgment have been outlined above in the sections on compensatory
rest and definition of working time.
February 2004
1
Including time spent non-resident on-call which does not count
as working time for the purposes of the directive. Back
2
Statutory Instrument 1998 No 1833 The Working Time Regulations
1998 (WTR 1998), Regulation 4. Back
3
Statutory Instrument 2003 No 1684 The Working Time (Amendment)
Regulations 2003 (WT(A)R 2003) Regulation 7. Back
4
WTR 1998, Regulation 5. Back
5
Council Directive 93/104/EC of 23 November 1993 concerning certain
aspects of the organisation of working time Official Journal L
307 , 13/12/1993 P 0018-0024. Back
6
European Court of Justice, Case C-303/98, Sindicato de Médicos
de Asistencia Pu«blica (Simap) and Conselleria de Sanidad
y Consumo de la Generalidad Valenciana. Back
7
European Court of Justice, Case C-151/02, Landeshauptstadt Kiel
and Norbert Jaeger. Back
8
Including attendance at courses, lectures, tutorials, and periods
of approved personal study. Back
9
WTR 1998, Regulation 24. Back
10
WTR 1998 Regulation 21. Back
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