Doctors and the European Working Time Directive

Find out how the EWTD was implemented, and how it affects consultants, SAS doctors and junior doctors.

Location: UK
Audience: All doctors
Updated: Monday 7 September 2020
Working hours article illustration

​The EWTD (European Working Time Directive) is an EU initiative to prevent employers from requiring their workforce to work excessively long hours, with implications for health and safety.

The UK version of the EWTD is also known as the WTR (Working Time Regulations).

Find out how it affects:

  • Consultants
  • Junior doctors
  • SAS doctors

 

Doctors' rights

The EWTD requires the working week to be an average of 48 hours, with further rights relating to break periods and holiday allowance, such as:  

  • 11 hours rest a day
  • a day off each week
  • a rest break if the working day is longer than six hours
  • 5.6 weeks paid leave each year.

It has applied to consultants and career grade staff since October 1998.

Junior doctors were initially exempt because there were concerns that the NHS would not be able to cope with losing so many junior doctor hours, but the EWTD was extended to cover them in August 2004.

The working week was reduced gradually until August 2009 – reducing the maximum hours worked from an average of 56 per week to 48 (calculated over six months).

 

Opting out

Although junior doctors are now covered by the EWTD, it is still possible for doctors to work longer hours by signing an opt-out clause. The BMA junior doctors committee believes this option should be retained only for those doctors who are able to determine their own working hours.

Given that the EWTD aims to improve health and safety, we think a number of conditions must be met if the opt-out is to remain part of the legislation: any opt-out must be truly voluntary, with no undue pressure or coercion exerted on doctors to work outside the directive’s hours and rest requirements. Further, an opt-out should neither be a necessity for a post nor form part of any contract.

There have been a number of European Court of Justice rulings on the EWTD. Perhaps the most important for doctors are the SiMAP and Jaeger rulings, which enshrined the principle of time spent on-call at the workplace being classed as work.

​The European Commission made numerous attempts to revise the EWTD, but it was unsuccessful due to disagreements between the European Parliament and member states. The most recent attempt failed as social partners – trade unions and employers’ organisations – failed to agree on a proposed revision by the deadline.

  

Consultants

The EWTD (European Working Time Directive) is health and safety legislation to protect employees from working excessive hours. The directive was implemented in UK law as the WTR (Working Time Regulations) in 1998, ensuring the provisions and safeguards were made effective for workers in the UK.

All consultants are covered by these entitlements, and employers have a legal obligation to implement them – strict penalties are imposed by the Health and Safety Executive for non-implementation.

The BMA consultants committee has produced comprehensive guidance on the regulations: Download the guidance (PDF)

 

What protection does the directive provide?

The WTR, which implements the EWTD in law, came into force on 1 October 1998, with full compliance by 2009. These safeguards are particularly relevant to workers in the health service:

  • 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.

 

What counts as ‘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 where ‘relevant training’ is received, as well as travelling time where travel has to be undertaken as part of the job.

Following judgments in the European Court of Justice, in the SiMAP and Jaeger cases, working time also includes any time spent resident on-call, including periods of inactive time, such as when a doctor is asleep on site.

 

What is compensatory rest?

The regulations allow 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.

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

Further information, including an example local agreement on compensatory rest, can be found in the guidance.

 

Can I opt out of the regulations and what are the implications?

It is not possible to opt out of the rest requirements, so doctors still need to ensure they take the necessary breaks, and their employer still needs to monitor the hours they work.

It is possible to opt out of other provisions. However, the consultants committee 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 your time is appropriately recognised and paid.

If you exceed the average 48-hour working week (including hours worked while on-call), we recommend that you urgently request a job plan review and explore ways in which your workload can be reduced. The BMA’s Dr Diary can help you gather the evidence to demonstrate that your workload is excessive – take this data to your review meeting.

Under the terms of the collective agreement, employers are legally obliged to implement these safeguards. 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.

Contact the BMA if you believe you are not afforded the entitlements under this agreement.

 

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Junior doctors

The EWTD (European Working Time Directive) is health and safety legislation to protect employees from working excessive hours. It was brought into UK law as the WTR (Working Time Regulations) in 1998, and implemented in full for junior doctors by 2009.

 

How does the EWTD protect junior doctors?

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. Limiting working hours can help reduce the likelihood of doctors getting tired, and therefore improve the quality of service delivered 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 can choose to work additional hours if they wish.
  • a period of 11 hours continuous rest a day (or compensatory rest to be taken another time if this is not achieved)
  • a day off each week , or two days off in each fortnight (or compensatory rest)
  • a 20-minute rest break every six hours (or compensatory rest).

In addition, to the above requirements junior doctors are also protected by the safety and rest requirements of either the 2002 or 2016 junior doctor contract, whichever they may be employed under.

 

What are the risks?

One of the big challenges doctors continue to face is in how the EWTD is implemented. It brings risks.

Rota gaps: Junior doctors’ terms and conditions of service are clear that your employer can ask you to cover only for brief rota gaps caused by, unexpected absence – eg sickness. You are not obliged to provide this cover and you should be paid for covering the gap. For a long-term gap – eg caused by long-term sickness, parental leave or failure to recruit sufficient staff – then locum cover must be used. Read more about 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

Training standards: If you have concerns about your training, raise the issue with your educational supervisor. If this doesn’t address the problem, the clinical director for the department and the director for medical education (clinical tutor) should be informed. If several junior doctors share concerns, it may be helpful to approach the relevant managers collectively. The next stage is to contact your training programme director at the deanery.

We have been calling for several years for new methods of training that will maintain existing high standards within reduced hours. We’ve worked with HEE (Health Education England) on pilot projects under the Better training better care initiative to improve training provision while controlling hours.

Bullying and pressure to opt out: We support an individual doctor’s right to opt out of the EWTD – it maintains that all doctors have the right to work within the regulations if they choose to – but no doctor should be coerced or pressurised into opting out.

Rotas and work plans should be compliant and additional work outside this time should be agreed with the 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 a BMA adviser.

 

How can the risks be mitigated?

Redesigning working patterns: Junior doctors’ 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 necessary opportunities for training.

Clinical tutors, educational supervisors and college tutors must also take responsibility for ensuring new rotas are good for training. There are contractual mechanisms to ensure junior doctors and clinical tutors are involved in redesigning a rota. Read the guide to rotas and working patterns

Junior doctors must not be pressurised into filling rota gaps, especially when there is a risk of EWTD breaches or exhaustion. It is also unacceptable for cover to be provided without additional remuneration. Many junior doctors are happy to cover gaps, but they must not be coerced and they must be paid properly for additional shifts.

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: Junior doctors and other grades often carry out tasks that are not an appropriate use of their time. The Department of Health and the BMA encourage transferring such tasks to other NHS staff, if it is clinically appropriate. This approach has been a feature of many successful EWTD compliance pilot projects.

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 be a ‘quick fix’. Working patterns 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 doctors’ workload and help make junior rotas compliant. Ideally, expansion of the consultant workforce should be a priority. This will enhance the quality of service delivery, ease pressure on junior rotas and enable more opportunities for junior doctor training.

 

What counts as ‘rest’?

Under the 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 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 at night. Junior doctors are unlikely to be classified as night workers, but this should not be assumed and each case should be considered on an individual basis.

 

What counts as ‘working time’?

Under the EWTD, working time is: all time spent at the place of work and available to the employer. This includes periods when the doctor is not actually working – eg resting during resident on-call periods.

The SiMAP and Jaeger European Court of Justice case rulings are responsible for this definition. However, it differs from the 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.

 

The implications of opting out 

Junior doctors are entitled to opt out of the EWTD, but it is important to consider all the risks. Many feel the only way to be exposed to sufficient training opportunities is to opt out and work more than 48 hours on average. 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 still need to ensure they take the necessary breaks, and their employer still needs 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. There is also no guarantee that additional work made available to trainees will be of educational benefit.

Safeguards must be in place to ensure there would not be discrimination against juniors who choose not to opt out, and clear mechanisms developed to protect junior doctors and ensure they are not subject to undue pressure. Where doctors opt out, there should be clear local guidelines on the terms of its use and its duration.

Read more on opting out [LINK]

 

What if a job breaches the EWTD?

Junior doctors’ pay is directly linked to the hours they work.

Under the 2002 contract this is achieved via the banding system,all junior doctors’ working hours should be monitored. Monitoring is a requirement in your contract, and it’s important for your own protection that you take part in monitoring exercises – it will reveal whether you are being paid correctly, and whether your working hours are legal.

Read more on banding [LINK]
Read more on monitoring [LINK]

Under the 2016 contract your average weekly hours, along with the pay these hours attract, should be set out in your work schedule. If you work beyond your scheduled hours then you should submit an exception report to claim pay or TOIL for this additional work.

Read more on exception reporting [LINK]

 

How to take action

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

HSE (Health and Safety Executive): 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. BMA members should seek advice from a BMA adviser [link]

Employment tribunal: A worker may bring an employment tribunal if the employer fails to provide the rest or leave to which they’re 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.

Employment tribunal proceedings have to be lodged within three months of the date of the breach. If you are a BMA member and wish to bring an employment tribunal, contact a BMA adviser.

 

Indemnity and working hours

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

Indemnity 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 to understand what your contracted NHS duties are, and arrange separate personal indemnity for any work outside the scope of the employing organisation or trust indemnity scheme.

Although not legally or professionally required, both the BMA and UK health departments advise all doctors to retain defence body membership or take out personal indemnity cover to support GMC or other professional conduct disciplinary proceedings, and cover for ‘good Samaritan’ acts, which do not fall under an employing authority/trust contract.

The medical defence bodies have assured us 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

 

We can help

If you have any concerns about your indemnity, please contact the relevant organisation. For most doctors employed by the NHS, your employer should be the first contact when confirming indemnity cover.

 

Need help? For 24/7 emergency COVID advice please call us. For all other non-emergency enquiries normal opening times apply.

SAS doctors

The European Working Time Directive (EWTD) is health and safety legislation to protect employees from working excessive hours. The Directive was then implemented in UK law as the Working Time Regulations (WTR) in 1998, ensuring that the provisions and safeguards were made effective for workers in the UK.

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

SASC UK has produced a series of key FAQs for SAS doctors on the EWTD/WTR.

 

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, as well as travelling time where travel has to be undertaken as part of the job. Following judgments in the European Court of Justice (ECJ), in the SiMAP and Jaeger cases, working time also includes any time spent resident on-call, including periods of inactive time, such as when a doctor is asleep on site.

Compensatory rest

The Regulations allow 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.

The Jaeger judgment indicated that compensatory rest should be taken as soon as possible after the end of the working period. The BMA 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 provision is not aimed at providing extra periods of leave that doctors can accumulate over time; it aims to ensure doctors are not tired when working.

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 UK have previously heard that some SAS doctors were asked to do more on-call and out-of-hours work to cover for their junior colleagues as a result. 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 remunerated.

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 Working Time Regulations work for me?

Devising your rota

Devising your rotas through a collaborative team-based approach is likely to be more effective and supported by those working on it

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

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

EWTD provisions 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) e.g. nurse practitioners, physician associates, 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. The BMA’s Dr Diary can help you gather the evidence to demonstrate that your workload is excessive – take this data to your review meeting.

If you choose to undertake resident on-call work, you must 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.

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. You should speak to your LNC or Regional SASC representative if you believe that your employer is trying to make a detrimental change to your working arrangements.

Get help

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