SAS doctor Working hours

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European Working Time Directive: SAS doctors FAQ

Answers to your frequently asked questions about how the European Working Time Directive affects staff, associate specialist and specialty doctors.

  • What counts as working time and what is rest?

    The European Working Time Directive (EWTD) is a directive from the Council of Europe to protect the health and safety of workers in the European Union. It lays down minimum requirements in relation to working hours, rest periods, annual leave and working arrangements for night workers.

     

    Working time

    The legal definition of working time:

    "Working time shall mean any period during which the worker is working, at the employer's disposal and carrying out his or her activity or duties, in accordance with national laws and or practice."

    In 2000 and 2003, the European Court of Justice (ECJ) published its SiMAP and Jaeger rulings which stated that all time (even inactive) spent on-call should be classified as working time. Both cases referred to doctors’ on-call periods and Jaeger made recommendations regarding the timing of compensatory rest.

    The European Commission reviewed the EWTD through a social partner consultation.

     

    Rest

    What flexibility do NHS employers have in giving rest entitlements?

    A derogation is an agreement to introduce flexibility in some of the rest requirements, allowing doctors, for example, to take compensatory rest in lieu of the rest they should be getting while working. The UK has derogated from rest requirements for all grades of doctors (subject to immediate compensatory rest) under the Working Time Regulations 2003, thereby giving NHS employers some flexibility as to when rest is taken. 

    The minimum rest  break requirements specified by the WTD are as follows:

    • a minimum daily consecutive rest period of 11 hours
    • a minimum rest break of 20 minutes when the working day exceeds six hours
    • a minimum rest period of 24 hours in each seven day period (or 48 hours in 14 days)
    • a minimum of 5.6 weeks' paid annual leave
    • a maximum of eight hours' work in any 24 hours for 'night workers' (the WTD definition of night worker is someone who normally works at least 3 hours between 11pm and 6am)

    Compliance with the 48 hour working week should be measured over a reference period of 26 weeks. Within that it should be ensured that doctors are receiving adequate rest breaks and compensatory rest.  

      

  • How has implementation affected SAS doctors?

    In order to comply with the full implementation of the WTR in 2009, the rotas for doctors in training were re-banded and re-arranged. SASC have initially heard that some SAS doctors were asked to do more on-call and out-of-hours work to cover for their junior colleagues. There is now a further political agenda to increase senior doctor cover in the out of hours period too. If you are being asked to do additional hours this should be agreed in your job plans and appropriately funded.

    We have also heard reports of some members being asked to remain at their place of work for study periods and Supporting Professional Activities. There is no national agreement on this and the Local Negotiating Committee (LNC) should be involved if this request is made. Being at your place of work for study or during SPA time shouldn’t mean that you are also on-call as this will disrupt your study time.

     

  • How can I make the EWTD work for me?

    Check with your LNC as they should have an agreement in place with the employer regarding implementation of the directive.

     

    Devising your rota

    • You must be part of the team devising your own rotas, as imposed rotas are much more likely to lead to unhappiness.
    • Only make a personal opt out of the WTR if you are satisfied that you will not be coerced into working more than you want to (for example if you design the rotas).
    • Where there are rota gaps, you must not be pressurised into filling in for vacancies, especially where there is a risk of WTR breaches or exhaustion.  Many SAS doctors will be happy to cover gaps, but you must not be coerced and you must be paid properly for the additional shifts.
    • Remember that full-shift rotas with prospective cover need at least ten people and you should check that your employer conforms to this.

     

    Working together

    • New Deal and EWTD will mean there are fewer junior doctor ’hours’ available - something will have to give. Hence all sides must be realistic.
    • If no one is getting rest - it will have to be a full shift rota. Look at monitoring data and diary cards or what colleagues are doing. Can the rest requirements of an on-call or partial shift be met?
    • Remember that other staff (such as allied health professionals) may be able to take some of the load (where appropriate) eg nurse practitioners, physicians assistants etc. Obviously this should not be at the detriment of patient care and these staff will not be able to perform all the functions of a SAS grade doctor.

     

    Terms and conditions

    • If you have evidence of total hours worked in excess of the average 48 hour working week (including hours worked whilst on-call), you should request a job plan review with the person responsible and discuss ways in which to reduce hours worked. Alternatively, you should ensure that a record of the job plan meeting shows the nature and extent of the work, your voluntary opting out of the 48 hour weekly limit and the consequent appropriate adjustment of salaried PAs.
    • Both SASC and NHS Employers agree that resident on-call work is not appropriate under the WTR. However, if you do take up this work, ensure that you are paid appropriately. SASC suggests that under the 2008 contract you should be paid an on-call supplement as well as time and a third for all your hours at the hospital. NHSE do not agree with this interpretation but agree that all time spent as resident on-call should attract the enhanced pay of time and a third.
    • There is no nationally set obligation to be in your place of work for study periods and SPAs. This is by local agreement with your LNC and employer and you should speak to your LNC or RSASC representative if you believe that your employer is trying to make a detrimental change to your working practice.

     

    Get help

    BMA members can get advice if your hospital is considering reconfiguration due to the WTD. Speak to one our BMA Advisors on 0300 123 1233.