WORKING TIME DIRECTIVE (12683/04, 9554/05)
Letter from Jim Fitzpatrick MP, Minister
for Employment Relations and Postal Services, Department of Trade
and Industry to the Chairman
I am writing to update your Committee on the
progress made under the Finnish Presidency during the summer recess
and to update you, as requested, on how the failure to solve the
problems caused by the SiMAP and Jaeger rulings is affecting the
day-to-day running of hospitals and the training of junior doctors
and whether it is exposing hospital authorities to a serious risk
of litigation or intervention by the Commission.
Finland has been engaged with this dossier from
the start of their Presidency and appears keen to resolve the
dossier. However it is too soon to tell whether Finland's eventual
proposal will meet the UK's needs as we are awaiting information
on the detail of what they have in mind.
Ministers and DTI officials have spent the last
few months meeting other Member States—both those in favour
of and opposed to the UK's position—in an effort to find
a solution and push forward the debate.
The Finns have called an extra Employment Council
on 7 November at which they say they intend to focus primarily
on the Working Time Directive. In the meantime the UK Government
will continue to fight to achieve a solution to the problems caused
by the ECJ SiMAP and Jaeger judgments and the retention of the
individual right to opt-out of the 48-hour maximum working week,
without unnecessary restrictions.
EFFECT OF
SIMAP/JAEGER
The NHS has implemented the SiMAP/Jaeger interpretations
of the Working Time Directive and sustained patient services.
This has been particularly challenging in highly specialised 24/7
services such as maternity, paediatrics and anaesthetics.
SiMAP/Jaeger continues to distort working patterns
in some specialties and is a challenge to continuity of patient
care and medical training. Surgical trainee logbooks show a 21%
reduction in cases performed. This is the result of working night
shifts when few training opportunities are available. In addition,
training opportunities are share amongst larger teams of doctors
needed to staff shifts (compared to traditional resident on-call
working).
The Department of Health is supporting the medical
profession in providing practical help to doctors who work shifts
and has commissioned Sheffield University to undertaken WTD research
to help support training. Also, the better managed and structured
training arrangements set out in Modernising Medical Careers (MMC)
should lead to more meaningful and focused training. This can
help ease the pressures on trainees' time as the new training
programmes will focus on developing the skills required and ensuring
that the most is made of all the educational opportunities available.
This should be a benefit in developing WTD compliant rotas. MMC
specialist training commences in August 2007.
DH has appointed National Workforce Projects
as the lead NHS organisation to support full implementation of
the new requirements in the existing WTD for doctors in training
from August 2009. In order to do so they have commissioned a range
of pilots including team working and handover pilots to support
continuity of care; and making care 24/7 pilots, which builds
on the principles of the Hospital @ Nights (H@N) project. H@N
multi-disciplinary teams reduce the number of doctors needed in
the hospital at night through cross-over between specialities.
RISK OF
LITIGATION/INTERVENTION
BY THE
COMMISSION
We understand that the Commission has undertaken
an analysis and concluded that 23 countries, including the UK,
are having problems implementing SiMAP/Jaeger. It has threatened
to commence infraction procedings against those member states
involved, as it has several times in the past, but as yet has
not shown any signs of action.
THE POSITION
IN OTHER
MEMBER STATES
As highlighted above, according to the Commission
there are only two Member States that have no difficulty in implementing
the SiMAP/Jaeger judgments although the exact position varies
from state to state. Some Member States have implemented the judgments
at huge cost, some have not implemented the judgments at all and
some use the flexibilities allowed in the Directive, such as the
opt-out and collective agreements, to mitigate the effects of
the judgments on their health services.
I hope your Committee will find this information
helpful.
11 October 2006
Letter from Jim Fitzpatrick MP to the
Chairman
I am writing to outline the Government's position
on the renegotiation of the Working Time Directive in advance
of the next Employment Council on 7 November. I understand that
the Finnish Presidency is committed to resolving this dossier
and Working Time is on the agenda of the Council for political
agreement. I believe that you have already received the annotated
agenda from colleagues at the Department for Work and Pensions.
We have received an initial proposal from the
Finnish Presidency, however it has become clear during discussions
at Member State level that different Member States have interpreted
the provisions of the proposal differently and that further clarification
is needed. We believe that the Presidency will be issuing a final
proposal shortly before the Employment Council.
While we are doing everything we can to support
the Presidency's efforts to find politial agreement, and resolve
the Directive in line with UK objectives, we do not yet know exactly
what the detail of the final Finnish proposal will be.
I am sure you understand that this is a very
tight timetable and it will be difficult for me to send you the
Government's response to the final Presidency proposal in time
for you to discuss the scrutiny position before the Employment
Council on 7 November.
I am therefore writing to reassure the Committee
that the UK's policy and negotiating priorities have not changed
since I last wrote to you in October 2006. They remain:
— a solution to the problems caused
by the ECJ SiMAP and Jaeger judgments; and
— the retention of the individual right
to opt out of the 48 hours maximum working week, without unnecessary
restrictions.
I know that many Member States agree with these
views and that the Finnish Presidency has been working hard to
find a way forward that is acceptable to Member States in order
to resolve this dossier.
Initial indications are that Finland's proposal
is likely to include additional provisions to ensure proper protection
of workers including safeguards for those using the opt-out. We
would be willing to consider and might be willing to accept such
provisions so long as the Goverenment's priorities , as recorded
above, are respected.
If possible, I will endeavour to send you the
final formal proposal we receive from the Finnish Presidency,
with the Government's view, in time for the Committee to consider
their scrutiny reservations. However, should this not be possible,
and a deal acceptable to the UK appears achievable at Council,
I do hope the Committee will understand that I might needs to
override the Committee's scrutiny reservation on this occasion.
I would of court write to you as soon as possile after the Council.
I do hope you and the Committee find this information
helpful.
30 October 2006
Letter from the Chairman to Jim Fitzpatrick
MP
Thank you for your letter dated 11 October which
was considered by Sub-Committee G on 26 October.
We are grateful to you for reporting recent
developments in your continuing attempts to find a satisfactory
solution to the impasse created by the proposed Directive and
the SiMAP and Jaeger ECJ rulings.
We note that the Finnish Presidency have called
an extra Employment Council for 7 November in an effort to resolve
the impasse, although their precise proposals are still awaited.
Ideally, we would hope that any Presidency Proposals will emerge
in time for them to be considered by the Committee before the
Council meeting.
But, in case that is not possible, we confirm
that you may continue to have the contingency discretion set out
in previous correspondence for you to support, if necessary, any
last-minute deal which may emerge that meets the essential national
objectives, as defined in previous correspondence, for the retention
of the voluntary individual opt-out in a manner that is appropriate
to British circumstances and an effective and workable solution
to the problems created by the SiMAP and Jaeger ECJ
rulings over the on-call duties of residential hospital personnel
and other employees in similar circumstances. As I pointed out
in my letter to you dated 20 July 2006[157]
that solution should satisfy not only the needs of hospital staffing
and patient care, but also those of medical training.
We are very disturbed by your report on the
adverse consequences which those rulings are causing for NHS working
patterns, patient service and medical training. We are glad to
learn that the Department of Health have been trying to find ways
of mitigating those consequences and helping the NHS to adapt
to the new requirements. But this is clearly a highly unsatisfactory
situation for which a workable solution is long over-due and must
be found as soon as possible.
We are glad to learn that the Commission has
so far shown no sign of taking action to bring infraction proceedings
based on these judgements, although it has apparently been threatened
to do so. We believe that it would be politically unacceptable
for the Commission to have the audacity to do so when those judgements
are clearly causing severe difficulties for a number of Member
States and have been actively and consistently opposed by the
UK and many other Member States and while the Commission have
failed to find an acceptable solution. We would urge that any
attempt by the Commission to bring infraction proceedings should
be staunchly resisted at the highest possible level by the UK.
In the circumstances, we would be glad to know
whether you consider it might be possible to find a way of breaking
the linkage, either legally or politically, between the opt-out
and the on-call duty elements which might pave the way to resolving
the on-call duty problem while discussion of the opt-out element
continues.
We will continue to retain this document under
scrutiny pending your further report.
31 October 2006
Letter from the Chairman to Jim Fitzpatrick
MP
Thank you for your letter of 30 October which
appears to have crossed with mine to you of 31 October. Your letter
was considered by Sub-Committee G on 2 November.
We note the continuing uncertainty about the
proposal relating to Working Time to be put forward by the Finnish
Presidency at the 7 November Employment Council meeting.
In your letter you ask us to understand the
potential need for you to override scrutiny in order, if the opportunity
arises at the Council meeting, to agree to a deal acceptable to
the UK.
In fact, I believe that my previous letter covered
this eventuality in terms of our agreement to an arrangement for
contingency discretion which would allow you to support an acceptable
proposal without the need for scrutiny override.
I attach a copy of my previous letter for your
attention and trust this provides you with a satisfactory solution
in the circumstances.
3 November 2006
Letter from Jim Fitzpatrick MP to the
Chairman
I am writing to update your Committee on events
at the Employment Council on 7 November. I was grateful for the
Committee's agreement to a contingency discretion to support a
proposal that met the negotiating priorities of the UK Government.
As you may already be aware, Member States were
unable to reach agreement at the Employment Council because a
blocking minority of five Member States insisted that the Directive
include a date for the end of the opt-out, something which is
unacceptable to the UK and to many other Member States. The UK
made clear that it stood ready to be constructive and stressed
the need for a solution to the problems posed by the SiMAP and
Jaeger judgements but was also firm on the need to retain the
individual opt-out.
We were obviously disappointed that the Council
ended without reaching agreement and it is not clear at the time
of writing what, if any further plans the Finnish Presidency have
for the dossier. The next Employment Council under the Finnish
Presidency is being held in December. Although the Presidency
have said that they will not deal with the Directive at the Council,
it is still possible that Working Time will be discussed. In any
event, our policy and negotiating priorities will remain unchanged
and the UK Government will continue to fight hard in order to
achieve:
— a solution to the problems caused
by the ECJ SiMAP and Jaeger judgments; and
— the retention of the individual opt-out
of the 48-hour maximum working week, without unnecessary restrictions.
You asked whether it would be possible to break
the linkage between the opt-out and on-call duty elements of the
Directive. This would certainly be possible and one or two Member
States suggested this as an approach in the recent Council. However,
to date, this suggestion has been opposed by a minority of Member
States as they are unwilling to agree any way forward that does
not set a date for the end of the opt out, despite the problems
these judgements are causisng throughout the EU.
We are now waiting for the Presidency and Commission
to decide on what the next steps for this dossier will be. We
will of course keep you and the Committee informed and write to
you again when we have more concrete information to report.
17 November 2006
157 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, p 558. Back
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