Working hours Consultant

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European Working Time Directive: Consultants FAQ

Overview

The EC directive on working time is health and safety legislation to protect employees from working excessive hours.

The regulations which implement the directive in law came into force on 1 October 1998, and as primary legislation provide for: 

  • a limit of an average of 48 hours worked per week, over a reference period.
  • a limit of 8 hours worked in every 24 hour period for night work
  • a weekly rest period of 24 hours every week
  • an entitlement to 11 hours consecutive rest per day
  • an entitlement to a minimum 20 minute rest break where the working day is longer than 6 hours
  • a requirement on the employer to keep records of hours worked

All consultants are covered by the entitlements afforded under the Directive. Employers have a legal obligation to implement the directive, with strict penalties being imposed by the Health and Safety Executive for non-implementation.

The Consultants Committee has produced comprehensive guidance and a series of FAQs for consultants on the European Working Time Directive.

European Working Time Directive: guidance for consultants

 

Frequently asked questions

  • What protection does the EWTD provide?

    The European Working Time Directive is European legislation that was enshrined in UK law as the Working Time Regulations 1998, and came into force in the UK in 2009. These regulations provide a number of protections, including:

    • a limit of 48 hours a week on average, calculated over a period of 26 weeks. Doctors are entitled to choose to work additional hours if they wish
    • a period of 11 hours continuous rest a day (or compensatory rest to be taken at another time if this is not achieved)
    • a day off (24 hours) each week, or two days off in every fortnight (or compensatory rest)
    • a 20 minute rest break every 6 hours (or compensatory rest - as defined below)
    • a limit of 8 hours worked in every 24 hour period for night work
    • a requirement on the employer to keep records of hours worked

     

  • What counts as 'working time' and what is 'rest'?

    Working time

    Working time is defined as any period in which a worker is working, at the employer's disposal and carrying out their activities or duties. This includes any period of time where 'relevant training' is received and travelling time where travel has to be undertaken as part of the job. Following judgments in the European Court of Justice (ECJ), known as SiMAP and Jaeger, working time also includes any time spent resident on-call, including periods of inactive time eg when a doctor is asleep on site.

     

    Compensatory rest

    In order to prevent the delivery of patient care from being disrupted unnecessarily, the BMA negotiated with government derogation from the Directive with regard to the timing of rest periods for doctors. This means that where rest is delayed or interrupted by work, doctors can take an equivalent period of rest at another convenient time. These derogations were largely intended to allow local flexibility to help employers and employees continue to provide an appropriate standard of care to patients whilst offering appropriate periods of rest to senior hospital doctors.

    The Directive allows employers to exclude the provisions in relation to length of night work, daily rest, weekly rest and rest breaks if compensatory rest is provided. This means that where rest is delayed or interrupted by work, compensatory rest must be granted. However, there is flexibility about how and when compensatory rest is calculated. The entitlement to compensatory rest will be granted by the employer 'wherever possible' (Regulation 24, Working Time Regulations 1998).

    The Jaeger judgment indicated that compensatory rest should be taken as soon as possible after the end of the working period. The CC shares this view and we advise Local Negotiating Committees (LNCs) to ensure that local agreements recognise the importance of ensuring rest is taken as soon as possible after a disruption to rest. The Directive is not aimed at providing extra periods of leave that consultants can accumulate over a period of time; it aims to ensure consultants are not tired when working.

    The length of the rest period that should be taken is not clearly defined in the Directive. In each situation the rest provided should make up for the rest missed; and, under the provisions of the Jaeger ruling, should be taken immediately after the end of the working period. The implications of the Jaeger ruling are that it will not be sufficient to aggregate the rest available to an individual over a period and assume that the minimum requirements have been met.

    LNCs should discuss this with trust management but be mindful of the following factors:

    • the length of disruption
    • the nature of the disruption (did it require a return to the hospital or other significant disruption)
    • the number of disruptions to a period of rest – if there are several then the rest might be assumed to be not a genuine period of rest.

     

    Example local agreement on compensatory rest

    The collective national agreement for senior hospital doctors, implementing the Working Time Regulations (1998), provides that where prescribed rest periods have been significantly interrupted, the doctor should take compensatory rest. This is not counted as annual leave. It is good practice for such compensatory rest to be taken immediately after the end of the working period.

    A doctor may commence work at a later time on the day following a significant interruption to rest, after notifying the responsible manager where work was to be performed. This provision is important for the maintenance of patient safety and shall not be taken as amending the doctor's rights under the Working Time Regulations. Any consultant having to take compensatory leave should ensure that colleagues are forewarned in order that appropriate cover arrangements can be arranged if necessary.

    Doctors on part-time contracts are entitled to the same compensatory rest breaks as those doctors on whole-time contracts, as detailed above. It is therefore essential that doctors monitor their hours worked and their entitlements to compensatory rest.

    The LNC will play an important role in implementing the agreement across employers. As well as putting individual entitlements in place, the LNC should encourage systematic review of job plans to ensure that they effectively limit the excessive hours that some doctors are working. LNCs may need to agree different arrangements for different grades of doctor, because an agreement for consultants may not suit eg junior doctors' working patterns.

     

    Night workers

    Night workers normally work at least three hours per day during the period 11pm-6am. It is unlikely, though not impossible, that any doctor will fall into this category.

     

  • What is the best way to calculate hours worked?

    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.

    Example

    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

     

    On-call working

    (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.

     

    Non-NHS work

    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.

     

    Locum doctors

    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.

     

    Clinical academics

    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.

     

  • How does EWTD affect doctors?

    The EWTD confers significant benefits on consultants in terms of protecting their health and safety, and that of their patients. Limiting working hours can help to reduce the likelihood of doctors getting, tired and therefore improve the quality of service that they can deliver to patients. Where doctors are well-rested and alert, thanks to improved work life balance, the risk to their own safety both on and off duty is also reduced.  

     

  • Can I opt out of the EWTD and what are the implications?

    It is not possible to opt out of the rest requirements, so doctors will still need to ensure they take the necessary breaks, and their employer will still need to monitor the hours they work. The opt out provision is available to all doctors, however the CC strongly recommends that doctors do not opt out of the collective agreement and are afforded full protection under this health and safety legislation. If you do opt out, make sure you get paid the appropriate number of PAs.

    Exceeding the 48 hour limit on working time

    Under the terms of the Directive, employers are required to develop effective processes to assess working hours. As soon as it is clear that the 48 hour average working week will be exceeded, then the employer will need to take steps, in consultation with the doctor, to reduce the doctor's excess working hours and work commitment. This will be achieved through a renegotiation of the job plan and should be carried out as soon as possible after the monitoring period.

    The CC recommends that doctors with evidence of total hours worked in excess of the average 48 hour working week (including hours worked whilst on-call), should request a job plan review with the person responsible and discuss ways in which to reduce hours worked. If, after a minimum of four weeks following this review, the doctor continues to work in excess of the 48 hour limit, further consultation with the person responsible for the doctor's job plan should take place.

    Alternatively, the doctor should ensure that a record of the job plan meeting shows the nature and extent of the work, their voluntary opting out of the 48 hour weekly limit and the consequent appropriate adjustment of salaried PAs.

    Under the terms of the collective agreement, employers are legally obliged to implement the terms of the agreement. If employers refuse to address the problem of hours worked in excess of the 48 hour limit and are therefore in breach of the regulations, legal proceedings may be taken against them.

    Under the terms of the Directive, the Health and Safety Executive is the enforcing authority. The Executive is given the power to enforce this legislation. An employer found guilty of an offence may be liable to a fine or conviction under sections 33 and 42 of the Health and Safety at Work etc Act 1974.

    A doctor has the right to present a complaint to an employment tribunal in circumstances where the employer has refused to permit a doctor any right he or she has to daily or weekly rest break entitlements. A doctor is entitled to claim compensation at a tribunal. This compensation could take into account the employers default in refusing to permit the doctor to exercise his or her legal right.

    It is recommended that BMA members contact their local BMA office in circumstances where they believe that they are not afforded the entitlements under this agreement.