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The Working Time Directive

Explained by the BMA

The EC Directive on Working Time is Health and Safety legislation to protect employees from working excessive hours. All senior hospital doctors 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 Central Consultants' and Specialists' Committee (CCSC) of the BMA and the NHS Executive have negotiated a collective agreement regarding the application of the Directive for senior hospital doctors on national terms and conditions of service, including consultants, associate specialists, staff grade doctors, hospital practitioners and clinical assistants. This agreement applies derogations under Regulation 21. Derogations have been applied to ensure that continuing responsibility to patients is maintained and the necessary protection for senior hospital doctors under the Directive is retained.

Regulation 21 allows employees to work no more than an average 48 hours a week, and for the entitlement to the rest periods as prescribed in the legislation to be disapplied as written. In place of the prescribed rest breaks, compensatory rest will be granted in lieu, wherever these breaks are encroached upon in the course of a practitioner's duties.

The agreement is set out in AL(MD) 6/98. The agreement is necessarily detailed as it is the result of complex EC legislation. The CCSC hopes that the process of implementation can be smoothed by a common sense approach, both from doctors and from employers.

The CCSC views this legislation as a potential way of reducing senior hospital doctors' excessive hours worked. 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 trusts. The emphasis should be on systematically reviewing job plans to ensure that they effectively limit the excessive hours that some doctors are working.

Trusts should be held to account for implementing the agreement seriously and must not circumvent the rules which require them not to put pressure on individuals or opt out of the agreement. This is health and safety legislation.

LNCs should therefore seek an early meeting with the trust management to reach agreement on the framework for local arrangements to implement the new provisions. This should include an explicit agreement that the local arrangements will apply to any members of staff on trust contracts that do not automatically follow national terms and conditions of service. A model agreement is available from local BMA offices.

The process of implementation is essentially about setting up recording and monitoring arrangements to identify, over a period, where individuals are exceeding the limits of hours worked and where they are gaining entitlements to compensatory rest. This guidance includes specimen diary forms and advice on the extent to which hours and entitlements might be aggregated across a department.

The agreement only covers periods of work for employers; private practice is thus excluded. The EC Directive and therefore the agreement does not apply to junior doctors.

Individuals have the right to "opt out" of protection under the legislation, though this must be formally recorded. The CCSC strongly recommends that doctors do not opt out; it is important for the profession collectively to show that doctors can no longer be expected routinely to work long hours.

1. WHAT IS THE EC WORKING TIME DIRECTIVE?

The EC Working Time Directive ("the Directive") 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

It should be noted that the Central Consultants' and Specialists' Committee (CCSC) and the Health Departments have negotiated derogations from the application of some of these provisions, in a collective national agreement for senior hospital doctors which is detailed below (paragraph 3 and 4).

2. WHO IS COVERED BY THE DIRECTIVE?

The Directive applies to all doctors who have employed status (whole-time and part-time), excluding doctors in training (house officers, senior house officers, registrars, senior registrars, specialist registrars) and those acting as locum tenens in the training grades. All senior hospital doctors and clinical academic staff are covered by the terms of the Directive. The legislation does not apply to self-employed doctors i.e.. doctors performing private work, whether for the NHS or independently.

The Directive may be disapplied by personal choice; how this can be invoked is discussed in paragraph 13.

3. THE COLLECTIVE NATIONAL AGREEMENT FOR SENIOR HOSPITAL DOCTORS

The mechanism for the implementation of the Directive in the NHS is via a collective national agreement, negotiated through the recognised bargaining arrangements i.e.. for senior hospital doctors, between the BMA and the Health Departments through the Joint Negotiating Committee (Seniors). This agreement came into force on 19 November 1998, under AL(MD)6/98 and is attached as appendix IV

The collective agreement covers all career grade hospital doctors (including consultants, associate specialists, staff grade doctors, hospital practitioners and clinical assistants) on national terms and conditions of service or contracts mirroring national terms and conditions of service. The agreement will be implemented through amendments to the terms and conditions of service. Local Negotiating Committees (LNCs) will have an important role in implementing the agreement locally. A model agreement for LNCs is available from local BMA offices.

It is strongly recommended by the NHS Executive that the provisions of this agreement should be applied by NHS employers locally to career grade doctors on non-standard trust contracts.

LNCs will need to agree with trust management the inclusion of these doctors in the application of the agreement. In cases where this agreement will not be applied to these doctors, it must be emphasised that they will be covered by the terms of the Directive, as written.

It should be emphasised that the responsibility for the implementation of the agreement rests with the employer, i.e. the chief executive and trust board.

4. APPLICATION OF DEROGATIONS

All senior hospital doctors are covered by the Directive. However, it has been agreed nationally that in order to apply the. Regulations in a sensible way with the minimum of disruption to the service and doctors' professional lives, but which nevertheless provides the protection to which they are entitled as employees, derogations need to be applied.

The collective national agreement for senior hospital doctors on national terms and conditions of service therefore applies the derogations set out in Regulation 21 of the Directive.

Regulation 21 provides for the 48-hour working week to apply over an averaged reference period of 26 weeks. It disapplies immediate entitlement to the specified rest periods in the legislation, i.e.. a weekly rest period of 24 hours (or 48 hours every fortnight); a limit of 8 hours worked in every 24 hour period for night work; an entitlement to I 1 hours consecutive rest per day; and an entitlement to a minimum 20 minute rest break where the working day is longer than 6 hours.

As a result of the application of Regulation 21, compensatory rest will be given in lieu whenever these entitlements are not taken as prescribed in the legislation i.e.. doctors will be able to take accumulated weekly compensatory rest entitlements at a later date; within a reasonable time period (see paragraph 8 for further details).

Under the Directive, work is defined as "working, at his employer's disposal and carrying out his activity or duties". This definition includes all working periods other than those when on-call. Under the legislation, on-call duty is only defined as work when a doctor is actively carrying out NHS duties. The definition of work in the legislation is non-negotiable.

There is however, clearly a need to have an unambiguous understanding of how various categories of duties are to be recorded for the purposes of monitoring, since there are forms of activity (for example attendance at certain meetings) which though not legally defined as "work" are legitimate NHS activities and certainly not "rest".

The CCSC has therefore drawn up an illustrative list of those duties which it has agreed with the NHS Executive are to be viewed as "work" under the legislation (see appendix I, Box One).

Box Two includes examples of duties not included under the definition of work for the purposes of the Regulations, which should treated in the same way as annual leave (i.e.. excluded from overall calculations). In some circumstances trust management may accept that some of the activities listed in Box Two can be counted as "work". The LNC is encouraged to discuss these issues locally with trust management (Box Two).

The LNC will need to agree with management which duties listed in Box two should be considered as annual leave or work under the terms of the agreement.

6. CALCULATION OF HOURS WORKED

In order to assess the number of hours worked, on average each week, doctors will be required to monitor their hours. The agreement refers to the calculation of hours worked over a 26 week `reference period'. However, it has been agreed between the CCSC and the NHS Executive that monitoring the number of hours worked over a period of 26 weeks will not be necessary.

It has therefore been agreed that the best way to calculate the average number of hours worked would be over a shorter period, specifically a minimum of 4 weeks, or over the doctor's usual rota cycle, as preferred. The intention is to identify a typical working period. The average figure for the monitoring period will then be taken as valid for the 26 week reference period. The CCSC has produced a diary (appendix II) for doctors to complete over the monitoring period.

Under this agreement, the average number of hours worked per week will be calculated as follows: Average hours worked per week = Number of hours worked during monitoring period/ Number of weeks monitored

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 (see paragraph 7). Duties not included under the definition of work should not be counted for the purposes of calculating the total number of hours worked, but should be excluded frorn the calculations in the same way as annual leave (paragraph 7). Where these duties take less than half a day, it is expected that, in most cases, the doctor will usually just carry out their usual "work" duties at a different time and the number of hours worked during the week will therefore not be affected.

The CCSC recommends that the LNC agrees with trust management the length of the monitoring period across the trust/ departments. Agreement should also be reached on when monitoring should commence.

A copy of the diary is attached at appendix II and an example of a completed diary at appendix III. If hours worked, including hours worked when on-call significantly exceed the average 48 hours per week, then senior hospital doctors should discuss their hours worked with the person responsible for their job plan and alter their duties to comply with the weekly average hours worked under the Directive. There should also be an opportunity at the annual job plan review to look again at the number of hours worked.

(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 workrelated activity.This means that work carried out in any block should be counted. Work ends when the doctor resumes the non-work activity.

The CCSC and the NHS Executive have 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.

(ii) Resident on-call

Contractual requirement

It is CCSC policy that consultants should not undertake compulsory resident on-call duties. Some non-consultant career grade doctors are required to carry out resident on-call duties. When residence on-call is a contractual requirement, time on-call will contribute to hours worked on an hour for hour basis. The CCSC believes that senior hospital doctors should only undertake resident on-call duties where it is agreed that the requirements of the service demand it.

Clinical requirement

In circumstances where, in the interests of patient care, a doctor may need to be resident on-call on a voluntary basis (ie where there is no contractual requirement), on-call will be calculated on an hour for hour basis, as detailed above.

Contractual and clinical requirements to undertake resident on-call duties should be rare.

Voluntary resident on-call

In all other circumstances, where senior hospital doctors who, for personal and not clinical or contractual reasons, are voluntarily resident on-call, working time will be assessed on the basis that work begins when the individual is called and begins a work related activity. Doctors who normally reside in hospital accommodation will only be entitled to calculate these duties hour for hour when it is agreed the doctor is carrying out resident on-call duties.

Work carried out whilst on-call contributes towards an individual doctor's total hours worked per week. The hours worked on-call will be added to the number of hours worked carrying out duties agreed by the LNC to constitute "work" under the agreement. 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. The results from the monitoring period will apply over the 26 week reference period, unless there is a change in work patterns, in which case, doctors will need to re-monitor hours worked during this reference period. These results will be reviewed in the following 26 week period, and definitely annually as part of the practitioner's job plan review. Under this agreement, reference periods commence on 1 October and 1 April.

As detailed in paragraph 21 of the agreement (appendix IV), hours worked may be calculated on a departmental basis. This could be invoked where variations between individual doctors' working hours and hours worked on-call are insignificant. This can be done by asking all doctors on the same rota and employed on the same grade to monitor their hours worked and calculate, over the monitoring period, the average number of hours worked per week.

This figure can them be used to calculate the average number of hours worked by doctors on the same on-call rota in the ~I same department/ unit. This will ensure that variations in the intensity of particular on-call rotas will be taken into account.

LNCs should be aware that problems may arise when calculating hours worked in this way. Some doctors may have varying work commitments as a result of sub-specialisation and therefore differing workloads. During the monitoring period, some doctors may take annual/ sick/ maternity leave (see paragraph 7). This will mean that the monitoring periods for hours worked will be different for these doctors. On-call duties will also be affected for those doctors covering absent colleagues.

In the first instance, doctors will be required to monitor their hours worked individually and decide at departmental level whether aggregation of hours worked will produce a true reflection of the hours worked by the individual.

7. ANNUAL/MATERNITY/SICK LEAVE

Under the terms of this agreement, time spent on annual (including bank holidays and statutory days), maternity, sick or study leave should be excluded from the calculation of hours worked. For example, if a doctor takes 7 days annual leave over the four week monitoring period, then the time spent on leave should be excluded and the average number of hours worked calculated over a three week monitoring period. In circumstances where doctors are aware that they will be taking annual/ maternity/ study leave during the monitoring period, they are advised, where it is appropriate, to monitor hours worked at another time.

8. COMPENSATORY REST

Because a senior hospital doctor cannot easily comply with the rest periods prescribed by the legislation without severe disruption to the continuity of the service arid patient care, the profession has negotiated the collective agreement on the basis of Regulation 21, where the requirement for rest breaks to he taken, as listed in paragraph 1 of this guide, will be disapplied. The essential health and safety protection will, however, remain in force.

When work encroaches upon a prescribed rest. break, then compensatory rest must be granted. However, in the spirit of a common sense approach to the implementation of the legislation, the entitlement to compensatory rest. should not be interpreted too rigidly. The entitlement to compensatory rest will be granted by the employer "wherever possible" (Regulation 24, Working Time Regulations 1998).

In circumstances where doctors are not interrupted whilst carrying out on-call duties from home, these uninterrupted periods count as rest periods for the purposes of the Directive.

Therefore, where interruption is significant, doctors will be entitled to full compensatory rest periods (ie 11/24 hours consecutive rest periods) to be taken at another time. In circumstances where interruption is trivial, equivalent compensatory rest periods ie the full 11/24 hours consecutive rest, might not be granted.

The definition of `significant' or `trivial' interruptions will depend upon when the interruption occurs and the length of time it takes. For example, interruption to sleep would be viewed as a `significant' interruption, whilst, a short telephone interruption in the evening would normally be viewed as `trivial'. A recall to the hospital would be interpreted as a `significant' interruption.

In circumstances where doctors experience a `trivial' interruption during on-call, it might be possible for them to agree to commence work at a later time the following day.

Agreement should be reached between trust management and the LNC as to what constitutes a significant or trivial interruption.

Compensatory rest is granted over and above any other form of leave (annual/study etc) and should be taken over a period when the doctor usually carries out rostered duties. Trusts will therefore need to ensure that rotas are flexible enough to accommodate doctor's entitlements to compensatory rest periods.

The CCSC recommends that in order to calculate entitlements to compensatory rest, doctors will need to monitor the total hours worked (including hours worked whilst on-call) over a minimum of four weeks, using the diary in appendix II. Individuals will then be required to work out their entitlements to compensatory rest by asking themselves the following questions:

Have I received 11 hours of rest in each 24 hours, without significant interruption?	If no	Add 11 hours to your compensatory rest total for each day where this has not been awarded
Have I received 24 hours of rest each week, without significant interruption? or Have I received 48 hours of rest over two weeks, without significant interruption?	if no   if no	Add 24 hours to your total if you do not receive this entitlement   Add 48 hours to your total if you do not receive this entitlement
Have I received a 20 minute break for every 6 hour period worked?	if no	Add 20 minutes to your total for each `no'

It should be noted that the entitlement to 11 hours compensatory rest is separate from the entitlement to 24 hours rest every 7 days/48 hours rest every 14 days. This means that the 11 hour rest break entitlement cannot be taken as part of the 24 hour rest break entitlement, but in addition to it.

The CCSC recommends that the LNC agrees with the trust how this entitlement. to compensatory rest should be calculated ie 24 hours every seven days or 48 hours every fortnight.

It should also be agreed when compensatory rest entitlements will be taken by doctors. This agreement can cover the entire trust or differ across departments. Compensatory rest should normally be built into rota commitments and therefore taken every 4-8 weeks. In any event, it should normally be taken within 6 months.

The CCSC recommends that a doctor's average entitlement to compensatory rest should be calculated over a minimum period of 4 weeks and that this figure should used to as the average entitlement to compensatory rest per week over the 26 week reference period.

from the BMA document , "Guidance on Implementing the EC Directive for Senior Hospital Medical Staff 1999"

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