European Working Time Directive: Junior doctors FAQ

The Directive was designed to protect the health and safety of workers by restricting the number of hours an individual can work and by imposing minimum rest requirements for all workers. Limiting working hours can help reduce the likelihood of doctors getting tired and therefore improve the quality of service they can deliver to patients.

For Junior doctors it means:

• working hours have been reduced from an average of 56 per week to 48, 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 each week , or two days off in every fortnight (or compensatory rest)
• a 20 minute rest break every 6 hours (or compensatory rest)

In addition, Junior doctors are also protected by an agreement with the government known as the New Deal.  The New Deal and EWTD have some different limits and definitions.  However Junior doctors will receive protection under whichever arrangements are more beneficial to them.

However one of the major challenges that doctors continue to face is the way the EWTD is implemented. It brings risks.

 

Rota gaps

In some cases, gaps in can arise in rotas. Junior doctors' Terms and Conditions of Service are clear that where such a gap arises, your employer can ask you to cover only for gaps caused be brief, unexpected absence – for example, sickness.  You are not obliged to provide this cover and you should be paid for covering the gap.

Where there is a long term gap in a rota, caused for example by long-term sickness, maternity, or failure to recruit sufficient staff, then locum cover must be used.

Read more on rota gaps  

 

Clinical governance issues

These issues may arise due to poorly staffed or badly implemented rotas. If you have concerns about your working practice it is essential that you address this as you would under normal working conditions.

Read our guidance on raising concerns in the workplace

 

Training standards

If you have concerns about your training, the first thing you should do is raise the issue with your educational supervisor.  If this doesn't address the problem, the clinical director for the department should be informed as well as the director for medical education (clinical tutor).

If a number of junior doctors share concerns it may be helpful to approach the relevant managers collectively. The next stage after this is to contact your training programme director at the deanery.

We have been calling for several years for new methods of training to be developed that will enable existing high standards to be maintained within a reduced hours environment. We are currently working closely with Medical Education England on pilot projects under the 'Better Training Better Care' initiative to improve provision of training whilst controlling hours.

We will also be closely involved in the forthcoming independent review into the shape of training to be managed by Health Education England.

 

Bullying and pressure to opt out

We support an individual doctor's right to opt out of the working time regulations, it maintains that it is the right of all doctors to work within the regulations should they so choose. No doctor should be coerced or pressurised into opting out.

Rotas and workplans should be compliant and additional work outside this time should be agreed with the individual doctors concerned. Under no circumstances should a job application rest upon a doctor's agreement to opt out of the regulations. If you believe you are a victim of this practice please contact one of our advisers as soon as possible.

 

Redesigning junior doctor working patterns

Junior doctor rotas should be reviewed and re-worked to allow maximum training time and adequate service delivery. Junior doctors must always be involved in the redesign of working patterns to ensure they enable a good work-life balance and provide the necessary opportunities for training.

Clinical tutors, educational supervisor and college tutors must also take responsibility for ensuring that new rotas are good for training.

There are contractual mechanisms to ensure junior doctors and clinical tutors are involved in redesigning a rota.

Read our essential advice: rota design made easy

Junior doctors must not be pressurised into filling rota gaps, especially where there is a risk of New Deal or EWTD breaches and or exhaustion.

It is also unacceptable for cover to be provided without additional remuneration. Many junior doctors will be happy to cover gaps, but they must not be coerced and they must be paid properly for additional shifts.

We support our members to achieve this.

 

Clinical governance

If problems with the working pattern raise clinical governance and patient safety issues, the clinical director should be informed straight away.

Read the GMC's Good Medical Practice guidance

 

Task transfer

It is often the case that junior and other grades of doctors carry out tasks that are not necessarily an appropriate use of their time. The Departments of Health and the BMA encourage the transfer of such tasks to other NHS staff groups, provided this is clinically appropriate, to enable doctors' time to be freed up for other things. This approach has been a feature of many of the successful EWTD compliance pilot projects that have been run across the country.

 

Additional staff

Employers may choose to engage additional staff in order to achieve compliance, but their employment must be sustainable and affordable, and should not provide a 'quick fix' only. Working patterns will need to be compliant for longer than a single financial year.

Increasing the number of junior doctors on the rota, or employing additional non-clinical staff to undertake appropriate tasks will both ease junior doctor workload and enable junior rotas to achieve compliance. Ideally, expansion of the consultant workforce should be a priority. This will enhance the quality of service delivery, ease pressure on junior doctor rotas and enable more opportunities for junior doctor training.

 

Rest

Under EWTD rest is:

• a minimum of 11 hours' continuous rest in every 24-hour period
• a minimum rest break of 20 continuous minutes after every six hours worked
• a minimum period of 24 hours' continuous rest in each seven-day period (or 48 hours in a 14-day period)
• a minimum of 28 days or 5.6 weeks' paid annual leave
• a maximum of eight hours' work in each 24 hours for night workers.*

* A night worker is someone who works at least three hours of their daily working time during night time. Junior doctors are unlikely to be classified as night workers. However, this should not be assumed and where there is any doubt each case should be considered on an individual basis.

 

Working time

Under EWTD working time is:

• all time spent at the place or work and available to the employer. This includes periods when the doctor is not actually working, for example resting during resident on-call periods.

The SiMAP and Jaeger European Court of Justice case rulings are responsible for this definition.

But you should note that this definition differs from contractual or New Deal classification of working time, which does not count all resident on-call hours as work, but makes a distinction between actual hours and duty periods.

 

Junior doctors are also entitled to opt out of the EWTD. However it is important to consider all the risks before deciding on this.

Many junior doctors feel that the only way in which they will be able to be exposed to sufficient training opportunities will be to work more than 48 hours on average by using the individual opt out provision. This allows an individual, on a voluntary basis, to sign a waiver with their employer agreeing that they are happy to work additional hours.

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.

Although the opt out provision is available to all doctors, we believe that only those with true control over their own working hours should use it. We remain concerned that doctors working additional hours could be exploited.

Safeguards must be in place to ensure that there would not be discrimination against juniors who choose not to opt out and clear mechanisms would have to be developed to protect junior doctors and ensure that they were not subject to undue pressure. There is also no guarantee that any additional work made available to trainees by employers will be of educational benefit.

Where doctors use the opt out, there should be clear local guidelines on the terms of its use and its duration.

Read more on opting out

Junior doctors' pay is directly linked to the hours that they work via the banding system.  Under your contract, all junior doctors' working hours should be monitored.

Participating in monitoring is a requirement in your contract and it is very important for your own protection that you take part in monitoring exercises. Monitoring will reveal not only whether you are being paid correctly, but also whether your working hours are legal.

Where issues are identified with the rota, there are a number of approaches that can be used to tackle the problems.

Read more on banding
Read more on monitoring

There are two main routes where employees can take action against employers who breach EWTD:

 

Health and Safety Executive (HSE)

The HSE is responsible for enforcing the requirements of the EWTD. If an employer fails to take reasonable steps to comply with the provisions they may be liable to pay a fine of up to £5,000 for each breach as this is a criminal offence. Breaches should be reported through the regional HSE office. If you are a BMA member you should seek advice first from one of our BMA advisers on 0300 123 1233 who will be able to help you decide on the best approach.

 

Employment tribunal

A worker may bring an employment tribunal where the employer fails to provide the rest or leave to which a worker is entitled under the EWTD. For example:

• if they do not provide adequate daily rest or equivalent compensatory rest
• if a worker is dismissed because they fail to agree to sign an opt-out
• if they are dismissed or suffer detriment for bringing enforcement proceedings against their employer for a breach of the EWTD

Tribunals have no jurisdiction to hear claims by individuals for breach of the weekly working time limit.  Employment tribunal proceedings have to be lodged within three months of the date of the breach.

If a post is not EWTD-compliant and you are a BMA member who wishes to bring an employment tribunal you should contact one of our advisers straight away.

 

All NHS hospital and trust staff in the UK, junior doctors included, are indemnified in respect of clinical negligence claims by their employing organisation for all contracted clinical activities undertaken on behalf of the NHS, including those occurring during additional hours (plus any hours worked under an “opt-out” agreed between the doctor and their employer).

Indemnity in respect of clinical negligence claims for doctors working outside EWTD limits was addressed in 2007 by the Chief Executive of the NHS Litigation Authority (now NHS Resolution) and set out in a letter to all NHS Chief Executives and Finance Directors in England, this position remains current.
Read the letter

It is important that doctors understand what their contracted NHS duties are, and arrange separate personal indemnity cover for any work they do outside the scope of the employing organisation or trust indemnity scheme. Although not legally or professionally required, both the BMA and the UK health departments advise all doctors employed by the NHS to retain defence body membership or take out personal indemnity insurance to provide support with GMC or other professional conduct disciplinary proceedings, and cover for ‘good Samaritan’ acts, which do not fall specifically under an employing authority/trust contract. Doctors should ensure that the personal cover they opt for is adequate for the activities they undertake.

The BMA has spoken to the medical defence bodies and has been assured that doctors are not required to inform them if they sign an ‘opt out’ unless:

• their working hours alter significantly
• their responsibility levels increase
• non-NHS indemnified work is undertaken

The medical defence organisations note that it remains the responsibility of the individual doctor to ensure that they are fit for work and that they continue to abide by Good Medical Practice. If you have any concerns about your indemnity please do not hesitate to contact the relevant organisation. For most doctors employed by the NHS their employer should be the first contact when confirming indemnity cover.