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.
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.
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.