In order to assess the number of hours worked, on average each week, employees will be required to monitor their hours on an occasional basis.
The NHS agreement refers to the calculation of hours worked over a 26 week reference period. However, the CC and NHS Executive agreed that monitoring the number of hours worked over a period of 26 weeks was not necessary and that the best way to calculate the average number of hours worked is over a shorter period, specifically a minimum of four weeks, or over the doctor's usual rota cycle, as preferred. The intention was to identify a typical working period much in the same way a weekly job plan would. The average figure for the monitoring period is taken as valid for the 26-week reference period.
Periods of annual leave (including bank holidays and statutory days), sick leave, maternity leave and study leave are excluded from the calculation of hours worked. The Directive states that average hours should be calculated by aggregating all hours worked in the 26 week period and adding these to the hours worked during the number of days following the end of the 26-week period that is equal to the number of excluded days (annual leave etc) taken during the 26-week period. This sum should then be divided by 26 weeks.
Consultants should remember that 12PAs do not necessarily equate to 48 hours of work. For instance, if a consultant works a 12PA week, but two of those PAs were carried out in premium time (weekends or 7pm-7am (England) in the week), those PAs could only last three hours each rather than four (unless an alternative arrangement has been reached such as higher pay for four-hour premium time PAs). In that case, the 12PA week would be only 46 hours. (10PAs at 4 hours = 40 + 2PAs at 3 hours each = 6). 48 hours would correspond to 12.5 PAs in this example.
Job planning diary
Most consultants will be familiar with keeping a diary for job planning purposes and the monitoring of hours for EWTD can be carried out through the use of a job planning diary.
Find out more about job planning
(i) Non-resident on-call
Under the definitions of work in the Directive, when a doctor is on-call, working time should be assessed on the basis that work begins when the individual is called and begins the work related activity. This means that work carried out in any block should be counted. Work ends when the doctor resumes the non-work activity.
The CC and NHS Executive agreed that on-call time will be calculated in 30 minute blocks, however long the activity takes to complete. For example, work encroaching upon any block shall be counted as one period of 30 minutes. The CC recommends that shorter periods of unpredictable on-call work (ie any work that lasts for less than half an hour) can be added or grouped together and added to the diary once they total a half hour period.
(ii) Resident on-call
Consultants do not have to agree to work as resident on-call, schedule 8, para 4 of the terms and conditions of service states: 'Where unusually a consultant is asked to be resident at the hospital or other place of work during his or her on-call period, appropriate arrangements may be agreed locally. A consultant will only be resident during an on-call period by mutual agreement.' (Sch. 8, Para. 4)
Work carried out whilst on-call contributes towards an individual doctor's total hours worked per week - all time spent as resident on-call counts towards working time. The hours worked on-call will be added to the number of hours worked on other duties. This will provide each doctor with a calculation of the total number of hours worked each week, which can be averaged over the monitoring period.
Find out more about working on-call
Covering absent colleagues
In the first instance, doctors are required to monitor their hours worked individually and a decision should be taken at departmental level whether aggregation of hours worked will produce a true reflection of the hours worked by the individual.
With the changing nature of the NHS and increased plurality of provision, increasing numbers of consultants are working in a self employed contractor capacity.
Derogation from Articles 3-6, 8 and 16 of the Directive, which cover the 48 hour limit and other aspects, is possible for certain groups under Article 17 of the WTD. 'Persons with autonomous decision-taking powers' are one of these groups. We sought legal advice on the definition of an autonomous worker which stated that consultants' private practice work falls within the definition of 'managing executives or other persons with autonomous decision making powers'.
Consultants undertaking private practice work could reasonably be regarded as either managing executives or persons with autonomous decision making powers or, if not, they could sign an opt out agreement. The position is the same for consultants operating through the vehicle of a partnership or limited company. This is because, in practice, when working through either of these vehicles, the consultant retains autonomous decision making powers.
Doctors with more than one NHS Employer
Where a doctor holds contracts of employment with more than one NHS employer, the regulations and this agreement will apply across all NHS posts. The NHS employers concerned should act in co-operation to ensure compliance. This will be achieved through the establishment of a lead employer (who has the greater number of PAs or sessions worked by the practitioner). The lead employer will be responsible for monitoring hours worked and for keeping records. In circumstances where doctors hold separate contracts with the same employer, the regulations and agreement will also apply across both posts.
Senior hospital doctors in locum appointments will be covered by the terms of the agreement in the same way as for senior hospital doctors in substantive posts. Where a doctor is employed by an agency, the agency will be responsible for enforcing the Directive. Where employers employ locum career grade doctors either directly or indirectly they will be responsible for ensuring the provisions of this agreement are applied. Whether locums are employed through an agency or directly by the trust, the expectation is that employers remain within the spirit of the agreement.
For long term locum appointments, the same conditions will apply as for substantive posts. Where the appointment is for the short-term only, the reference period shall reflect the entire period of employment. For example, if the appointment is for one week, the reference period shall be for one week, and there will be a strict cap on the 48 hours worked. All other conditions remain as for substantive posts. Where rest breaks are infringed upon, compensatory rest will need to be built into the terms of the contracts. LNCs may wish to agree with trust management the average amount of compensatory rest to which doctors undertaking these locum posts are entitled to and to draw up contracts accordingly.
Some doctors are employed by universities or research foundations but also hold honorary clinical contracts with employers for their clinical work or research in the NHS. Under the terms of the Directive, an employer should take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the number of hours worked does not exceed 48 hours per average working week. At present the above agreement does not apply to clinical academics. The obligation is therefore on both employers (university or research foundations or NHS) to take reasonable steps to apply the legislation as written.
It has been agreed between the NHS Executive and the CC that to ensure that an appropriate balance of hours is maintained between academic and clinical work, NHS employers should liaise with these other employers. NHS employers will need to be alert to the position and to ensure that the hours spent in NHS hospitals are properly monitored and the entitlements under the regulations, for example, to rest periods and rest breaks, applied as necessary.
All clinical academics are advised to monitor their hours worked in both university and NHS time, using the diary referred to above. Clinical academics may wish to monitor hours worked for the university in a different colour marker to the NHS work, for ease of reference. This can be used to reduce hours worked, where necessary, to below an average of 48 hours per week and to calculate rest entitlements as detailed under the Directive.