Background
The European Working Time Directive (EWTD) has been fully implemented
and applicable to doctors in training since 1 August 2009.
1 Maximum working week
of 48 hours
The deadline for the 48-hour
maximum working week is from 1 August 2009.
On an exceptional basis Trusts were permitted
to apply for derogation up to the maximum of 52 hours per week. According to DoH website, no Trusts in our
patch have done so.
It is important to note that these working week
requirements are based on the average number of working hours over a reference
period of up to 6 months (26 weeks).
These requirements must be considered when planning the registrar’s
timetable.
2 A minimum daily consecutive rest period of 11 hours
3 A minimum rest break
of 20 minutes when the working day exceeds 6 hours. This must be taken in the middle of the
day, ie not at the beginning or the end. Any break from work where you are not
permitted to leave your workplace is not counted as a rest period. Working lunch is not counted as rest.
4 A minimum rest
period of consecutive 24 hours in each 7 day period (or 48 hours in 14 days).
5 A minimum of 4 weeks’ paid annual leave.
GP and OOHs
It is likely that particularly Out of Hours in General Practice will
breach the EWTD without careful attention.
It is essential that registrars have an unbroken 11-hour rest away from
work in any one 24-hour period. Being on
call where you are required to be at a place other than home is counted as
continuous work even if you are asleep.
Practices should ensure that their registrars keep them informed as to
their OOHs shifts and suitable adjustment of their practice workload is implemented.
What is ‘working time’?
The definition of working time includes:
1
any period
during which you are working at your employer’s disposal and carrying out your
activity or duties (including travelling where it is part of the job and
working lunches)
2 any
period during which you are receiving relevant training
3 any additional period which is to be
treated as working time for the purpose of the Directive under a relevant
agreement
4 ‘on-call’ time or out-of-hours
training when you are required to be at your place of work. [If you are permitted to be away from the
workplace and are accordingly free to pursue leisure activities, on-call time
is not defined as working time.]
5 Requirement to travel as part of job,
for example between sites.
What is ‘not working time’?
1 travelling
to work
2 voluntarily
staying to help finish a task off
The opt-out clause
It is possible for an employee to opt-out of elements of the Working
Time Regulations, providing this is
entirely voluntary. The opt-out,
however, only applies to total hours of work. It is not possible to opt-out of rest
requirements. If you wish to opt-out you
need to sign an opt-out agreement with your employer. You are free to cancel any opt-out agreements
within the agreed period of notice, which cannot be longer than three months
long. The BMA would not advise any
doctors in training posts to opt-out of the Working Time Regulations.
Compensatory rest
In a number of specific circumstances, including those relating to
patient care, the European Working Time Directive allows employers to exclude
the provisions in relation to length of night work, daily rest, weekly rest and
rest breaks (without employee opt-out) if compensatory rest is provided. There has been prolonged discussion about the
implementation of this element of the legislation and the BMA is still awaiting
clarification. Updates can be found at www.bma.org.uk/ewtd
Liability
Liability in the case of a breach of the Working Time Requirements lies
solely with the employer (training practice).
Each breach risks a fine of £5,000 from the Health and Safety
Executive. As yet, no fines have been
imposed with respect to doctors in training, despite breaches still being
relatively common in some hospital environments.
As long as the registrar has suitable membership of a medical defence
organisation, and considers themselves “fit” to work, there is not currently thought to be any
excess liability associated with a breach of the Working Time Regulations with
regards to medicolegal complaints.
If your job is not compliant with the Working Time Regulations you
should contact the BMA on 0300 123 1233
for advice.
For more detailed information on the Working Time Regulations as they apply to doctors see the Department of Health link
Information is also on the BMA website at www.bma.org.uk/ewtd