Examination of Witnesses (Questions 200
- 210)
WEDNESDAY 3 MARCH 2004
DR CATHERINE
BARNARD AND
MR RICHARD
HOBBS
Q200 Lord Colwyn: We have touched on this
slightly already and we took evidence from the British Medical
Association. There is no doubt that, whilst being in favour of
the opt-out, they are very worried whether it is going to work
or not. You also commented just now on the SiMAP and the
Jaeger rulings. We have heard that if there is a 58 hour week
that is going to mean the equivalent of 3,700 doctors' hours not
worked; if it is going to go down to a 48 hour limit, it is equivalent
to something between 4,500 and 95,000 junior doctors' hours missed.
Could you expand on what you have said already and say how you
feel this is going to be resolved?
Dr Barnard: For those who are not junior doctors,
the opt-out is the way forward so long as they do not fall within
the autonomous decision maker category, which of course would
be the other way forward. The problem is that this category of
autonomous decision makers, this Regulation 20, is such a vague
term that a lot of employers shy away from using it because it
is not at all clear to what extent someone who is not a junior
doctor genuinely has the autonomy that the language of Regulation
20 would require. That is why, of course, other states have started
to use the opt-out to try and deal with the problem of making
sure the hours stay up so that the jobs can get done. The other
thing that was reported to us, and which would support your concerns
about the reduction in hours—
Q201 Lord Colwyn: I did not mention also
that I think junior surgeons are getting something like one-sixth
of the training in practical experience?
Dr Barnard: That is exactly the point I was
about to make to you, that there is quite a lot of concern that
they are not being exposed to the full range of complaints, shall
we say, that more senior doctors would have had during their own
training period.
Q202 Lord Colwyn: Can we relate this to
the Department of Health? What do you think they should be doing
about it? It strikes me they may only just be taking it on board.
Dr Barnard: Of course it is such a long-term
problem because it takes ten years to train a doctor up to the
standard. There is not going to be an overnight solution. That
is why other states used the opt-out to try to plug the gap. The
other possibility, as you know far better than I do, is overseas
recruitment, but of course that just transfers the problem. If
you are getting in Spanish nurses and Spanish doctors, Spain has
the same problems and SiMAP of course came from Spain and
that is why they are starting to use the opt-out.
Mr Hobbs: Another option that was mentioned
to us during the interviews was I think a programme called "Extending
Roles" which is almost converting non-qualified staff into
qualified staff. That is moving the work down the scale in effect,
or moving people up the scale. There is an issue about that in
that it can take three to five years to get people through the
qualification process. It can involve a whole restructuring of
the infrastructure, if you like, and pay scales and pay structures.
Of course, at the end of the day, you could end up just moving
the problem from one area to another area. Both Unison and our
case study employers were very concerned that there were real
capacity issues and that we are just not going to be able to increase
the number of junior doctors by one-third, the figure I was given.
These programmes are not necessarily a panacea. Yes, extending
roles obviously is a good way forward. The trade union Amicus
said this is a real opportunity, but it is not a panacea. Amicus
also told us that perhaps some of these professions do put themselves
in a corner and make themselves more specialised than they actually
are, so that it then is more difficult to get people to become
qualified, if you like, for specific roles. That is another complex
issue.
Q203 Lord Harrison: You report that the
Engineering Employers' Federation and the CBI think that, as this
came under health and safety, it should not been seen as promoting
business efficiency, which on the face of it seems a strange remark.
How did you read it?
Mr Hobbs: Just a small point: the Engineering
Employers' Federation did not actually say that; the CBI said
it. What the Engineering Employers' Federation said was that there
are mixed messages: on the one hand it comes across as a health
and safety measure, but on the other hand it is portrayed as a
measure to improve competitiveness. That seems a fair comment.
The Directive was adopted on a legal health and safety basis;
on the other hand, the reduction in reorganisation of working
hours has been harnessed to the Lisbon agenda for more and better
jobs. The EU Employment Strategy 2002 guidelines specifically
talked about the social partners negotiating reductions and the
reorganisation of working time to improve efficiency. Yes, we
would say that for the EEF it is fair comment. As far as the CBI
comment is concerned, perhaps one point that should be borne in
mind is that the European Commission took a policy decision to
adopt the Working Time Directive on a legal health and safety
basis. The merits of that have been discussed over the years.
But it is quite important to bear in mind that earlier European
level initiatives on working time, such as the Council's
resolution in 1979 and the Commission's draft recommendation in
1983, very much had an economic policy rationale of reducing
unemployment and improving economic efficiency. The precursors
to the Working Time Directive, if you like, were very much underpinned
by an economic policy rationale. You could also say that the CBI
comment is not so surprising, given that in the UK, in some quarters
of the UK I should say for accuracy, the Working Time Directive
has been portrayed as almost a threat to business efficiency rather
than a tool for improving efficiency. Even the new Labour Government's
communications on this have been quite ambiguous because, if you
look at the Fairness at Work White Paper when the Directive was
adopted, they talk there about the 48 hour limit being likely
to promote more efficient working practices and innovation. Yes,
this is a tool for improving the working practices and efficiency.
But then, if you look at the Government's Manufacturing Strategy
paper of 2003, they talk there about tackling the long hours'
culture while maintaining productivity. You are not saying there,
"Let us tackle the long hours to improve efficiency",
again almost seeing it as a threat to efficiency. A similar message
was put forward, I think, by the Chancellor in his Budget statement
speech of 2003, saying that he wanted to retain flexibility for
the UK. So the CBI comment is perhaps unsurprising in the context
of some areas of the UK.
Q204 Lord Harrison: You actually mention
the word "flexibility". I do not think we have travelled
that, my Lord Chairman, have we, but actually flexibility works
both ways, does it not? There is flexibility on behalf of the
business, but the Commission also talks about flexibility of the
worker to marry his home life with his work life.
Mr Hobbs: Yes. On the one point of looking at
what flexibility is, is flexibility really the freedom from external
restraint in terms of freedom from regulation? You can also look
at flexibility if you had a multi-tasked, multi-skilled workforce
and you could do a lot more different kinds of jobs rather than
just having the one worker doing the one job for a lot more
hours. There is flexibility in that aspect. Going back to your
work-life balance point, which is in the communication obviously,
again I would say that until this point neither the EU political communications
nor the UK political communications on work-life balance have
made a significant point about reducing the long working hours.
On the Government's website it says that one of the aims is to
tackle the long hours' culture. If you look in the publication,
which I think is called The Business Case for the Work-Life
Balance, a government document to employers, there is a quote
that says, "Work-life balance is not about working less".
Again, there is an ambiguous communication coming out from the
Government about whether long working hours are associated with
the issue of work-life balance.
Q205 Lord Harrison: Going on to the UK and
other Member States, and you have touched on that already, I would
like to ask the first question about empirical studies, and are
there other Professor Barnards who have been beavering away and
whose reports we should investigate? What light, if any, and is
there anything similar, does it throw on to the question about
the UK having specific issues with regard to WDT compared to other
countries and how that might in time be reconciled?
Dr Barnard: The pragmatic answer is that because
no other Member State apart from the UK has taken advantage of
the opt-out, therefore it has not been an issue in other Member
States up until recently, and post-SiMAP and Jaeger,
and so there is no equivalent research being done in other Member
States on this very point because it is not a live issue in other
Member States. However, of course, now that other states are taking
advantage of the opt-out, it will become a live issue. If you
relate it to your other question about to what extent has the
UK got specific issues with this Working Time Directive that other
Member States do not have, of course what is always raised is
that, given that Ireland originally had the opt-out and has now
got rid of it and their economy has not collapsed, why will not
the same thing happen in the UK? We have not done a comparative
study because that was beyond our remit. We can say that there
is a deeply embedded culture of long hours' working in the UK
in the way that you do not experience necessarily in other Member
States. Where you do have a unionised workforce, and as we have
said before a lot of workers want to do the long hours either
because of overtime pay, which adds to the quality of their life,
or because for reasons of job satisfaction they want to do the
hours, the unions are reluctant to press working time as an issue
on the negotiating table. That, allied with the fact that there
is such low level coverage of collective agreements in the UK,
tends to suggest that the collective route to trying to address
the problem of long hours is not the way forward. We could perhaps
say that in the UK there are particular problems with skill shortages,
but then other Member States raise the same problem, particularly
in the health care sectors which you have identified previously.
There is another more sensitive issue that perhaps might be worth
thinking about. In the UK our correspondents have told us quite
clearly that there is a culture of compliance with the law and
good employers, and of course there are exceptions to the rules,
basically want to comply with the law. The opt-out enables them
to do so, particularly given the problems we have already established
with the rest of the Directive. Thus the concerns about what the
other derogations actually mean, particularly Regulation 20, are
exacerbated by the fact that the definition of working time is
so unclear and therefore time spent, for example by a service
engineer travelling to and from various jobs or between jobs,
counts. To avoid those problems of people exceeding the 48 hours
and thus the employer being subject to potential prosecution,
the employers have got their workers to sign the opt-out. At least
in that way, it means that the employer is complying with the
letter of the law. If the opt-out were to be removed, there is
a risk—and of course we cannot quantify that in any way—that
employers will say, "This law is barmy. It does not work
for us. We will just not comply with it". They will probably
get away with that because the level of enforcement of the regulations
is so low. The HSE and local authorities have not made working
time a priority. There are seven enforcement officers to enforce
working time issues right across the UK. It does not take much
maths to work out that the chances of an employer of being caught
in breach of the rules are pretty slim and, as I said to you at
the beginning, because of the lacuna in the regulations, it is
quite difficult for individuals to enforce their rights not to
have to work more than 48 hours a week. There is a risk that if
the opt-out were to go, this may have a corrosive effect on the
general culture of compliance that exists in this country with
the law.
Mr Hobbs: Another specific issue perhaps to
the UK is that if you look at the Commission's own report on the
implementation of the Working Time Directive the 2000 report,
it shows there that a lot of countries have exempted managers.
The Directive allows for exemption of autonomous decision-makers
and senior executives but that report says "managers".
In the UK we found, as I have already mentioned, that managers
have generally opted out. We did find that if the opt-out were
to go, there would be greater reliance on this autonomous decision-maker
provision and perversely that could reduce health and safety for
these people because it reduces their choice—do they want
to or do they not want to work over the 48 hours—and that
derogation also excludes other provisions, such as rest entitlements.
There is a specific issue. Perhaps a lot of other Member States
have collective provisions so they can deal with it that way for
manual workers and trade unions and then they have excluded managers,
whereas the UK has used the opt-out a lot more to countenance
those provisions. As has been touched on already, there are some
shortages in the UK especially in construction, and skilled engineers
and that is a big issue: why are there shortages? It goes a long
way back. There is more contracting out now, so nobody is providing
training. We used to have lots of big organisations that produced
many apprentices. You cannot say, "Get rid of the opt-out
and there will be more training". It is not so simple. These
are complex issues.
Q206 Chairman: That is very important. It
is quite obvious that at the sort of managerial level on the Continent
people are working—and I spent 19 years working on the Continent—very
long hours, the same as they are here. Because they are qualified
as autonomous workers, they are all excluded at that level. It
is a universal practice.
Mr Hobbs: There is probably a health and safety
point, that if you look at the evidence on health and safety,
managers have a lot more stress, anxiety and depression than elementary
workers and operatives. If this is really a measure about protecting
health and safety, is it really going to help by getting rid of
the opt-out but excluding all these workers through that derogation?
Q207 Lord Colwyn: Before we move on to the
next subject, Dr Barnard, you are a consultant to the Commission's
Working Time Directive. They are discussing it tomorrow, I gather,
at the Employment and Social Affairs Council. What do you think
is going to happen?
Dr Barnard: You generously give me a status
I do not have. I have been consulted by the Commission on the
UK's implementation of the Directive and then following through
on to this report. I am not a direct consultant. I have no knowledge
of what is going to happen tomorrow.
Q208 Lord Colwyn: Do you think they will
complete the opt-out?
Dr Barnard: I certainly do not think the opt-out
is going to disappear overnight because I think the Commissioners
realise that the issues have become more complicated. In respect
of the UK, my feeling is that they had not realised quite the
nature of the beast that they were dealing with, the nature of
the British workforce. Of course this is now exacerbated by
SiMAP and Jaeger, which has caused problems right across
Europe and which has necessitated reliance on the opt-out.
Chairman: Strictly speaking, there is
no provision proposed. It is at the stage of consultation, which
is why we are anxious to get our report in.
Q209 Earl of Dundee: Your report suggests
there are considerable sectoral differences in applying the opt-out.
Would you like perhaps just to explain what the differences are?
What are any differences?
Mr Hobbs: In the education sector, we found
that the opt-out had not been used, even though during term time
teachers regularly work over 50 hours per week. The reason there
is because of the statutory School Teachers' Pay and Conditions
Act, which sets its own reference period for directed work and
the rest of it, goes down as undirected. They said, "We have
not really bothered too much with the Working Time Regulations
and we are just relying on this undirected aspect". In the
Health Service, which we have touched on, obviously there are
key shortages in areas such as pathologists, radiologists and
anaesthetists. The view is that the opt-out is being used by the
vast majority of health trusts but for a minority, probably 10
or 15 per cent of staff where these key shortages are, I would
say. In manufacturing and engineering, most but not all of the
case studies had used the opt-out. I can go back to the reasons
and whether those were real reasons or just fears, and where there
was a cost issue and a flexibility issue. On the other hand, we
did find evidence where changing working organisation and moving
within the 48 hour week actually improved efficiency. There was
quite extensive use of the opt-out in the manufacturing sector.
In hotels and catering, we found that the opt-out had not been
used for general staff but it had been used extensively for their
managerial and supervisory staff, again about 10 to 15 per cent
of the workforce, but we were also told by one of the trade unions
that management staff are defined quite low down. You might be
a supervisor or a team leader rather than what normally may be
classed as a manager. Another issue was the fact that managers
who are responsible for several outlets do have a lot of travelling
time to these widely dispersed outlets. In financial and legal
services, we found that in high street banks it is obviously not
an issue, apart from in some cases of the regulated sales force
who might be doing mortgages and investments where targets are
an issue. We found in investment banks and City law firms that
over 90 per cent of the workers had opted out, for the reasons
we have gone through: the need for mergers and acquisitions, limited
time scales, and also an interesting point that the people they
were dealing with were probably senior directors who were exempt
from the Working Time Regulations. As you say, there was quite
a difference in the sectoral picture.
Q210 Earl of Dundee: On long hours in relation
to sectoral differences, is the instance of long hours a particular
feature of large employers or small employers, and should we have
more studies now on the needs and practices of particular sectors,
so that we can perhaps develop a better approach towards the question
of long hours?
Mr Hobbs: As an academic, I would always say
there is a need for more empirical work. On a serious point obviously,
you have our work, which is probably one of the first main pieces
of work. You also have the DTI study now by (Hogarth) which does
a survey of a thousand organisations and then 12 case studies.
You have studies by the DTI about the implementation of the Working
Time Directive. You could almost say that these are very micro
level studies in terms of looking at firms and at organisations.
Obviously our study has only looked at five particular sectors.
We are doing another report for the Commission looking at the
pharmaceutical sector and also at the broadcast and film sector,
which is a very interesting sector. We are looking at a couple
of other sectors ourselves. I would say that there is a need for
a more sectoral approach. We discussed competitiveness. The trouble
is that we have this micro aspect. One aspect is that you can
look at more macro factors. For example, when I interviewed representatives
of the broadcasting and film industry, they said that the real
issue here is that the Americans may pull out of investing in
UK and European films because they think the costs are going to
be too high to make films in the UK. There are many issues that
could revolve around this. Obviously lots more empirical research
is needed. In terms of the small against large point, I would
say that the anecdotal evidence is pointing towards to greater
use of the opt-out by smaller firms; perhaps they have not got
an HR department and know-how, if you like. The actual case studies
themselves did not necessarily reflect that because, as I pointed
out to you, the two small engineering companies that we used had
had a real economic impetus in two directions: one has expanded
and so they changed their shift patterns to become more efficient
on an expanding customer base, whereas another one had retracted
and so they changed their shift pattern to reduce their costs
in that way. They are not relying on the opt-out extensively now
and have gone through a change in process. We would say that in
large car manufacturing case study we were impressed with the
detail and the way that they adopted the Directive as a way forward
to change the way they control overtime, work organisation and
costs and improve efficiency. So our study did not really answer
your point specifically. Again, I refer back to the DTI report.
From their representative sample of 1,000 organisations, they
found that size of establishment was a significant factor so that
firms under 50 employees, across all occupations, were more likely
to use the opt-out than large organisations of over 500 employees.
Perhaps more significantly for the manual workers in these organisations,
manual workers in small organisations under 50 were five times
more likely to work sustained long hours than were employees in
organisations of over 500. There was also a difference in reasons
given for that. In the small organisations, it was very much business
demand-related, it was meeting deadlines and backlog of work,
whereas in the large organisations it was perhaps more cultural
in terms of "it is the desire of the workers to do the overtime",
and so they concluded perhaps that there is a difficulty in controlling
overtime in larger organisations.
Chairman: I think we have covered a lot
of ground and we have our breakfast reading, as I said at the
beginning, which is your full report. May I thank you very much
indeed. We are trying to move fairly fast and so if you could
let us have us back the corrected transcript quickly, that would
help us. Thank you particularly for coming. You have done a lot
to contribute to our report indirectly, as well as providing a
lot of information of your own.
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