The Working Time Directive was introduced into UK law by Statutory Instrument No. 1833 in 1998. Since then, its applicability to the medical profession has been sporadic and punctuated with exemptions and postponements. As far as junior doctors are concerned, at best its implementation has conformed to the letter of the law. However, it has not been implemented according to its spirit as the health and safety measure it was intended to be.
The Directive contains legislation meant to provide workers with a high level of protection of their health and safety at work. Para 4(1) of the Directive placed a limit on a worker’s working time, including overtime, in any reference period to 48 hours for each 7 days.
Para 4(2) placed an obligation on an employer to take all reasonable steps to protect the health and safety of its workers to ensure that the limit of 48 hours for each 7 days was not exceeded.
The legislation also requires employers to “keep records which are adequate” to show that the working time limits are complied with.
Other paragraphs in the legislation placed obligations on employers to limit the length of night work, to ensure workers were given adequate rest breaks, to keep adequate records of the time worked by their employees for 2 years, and daily and weekly rest periods.
These are the working practices which had long been adopted by reasonable employers. The legislation extended those same rights to other workers who previously did not receive them. However, Para 18(b) excluded doctors in training from the provisions of the legislation. In other words, junior doctors did not have the same protections nor the same limits placed on their working hours as other NHS employees, including consultants, to whom the 48-hour limit did apply. According to the BMA, this was because there were concerns that the NHS would not be able to cope with the loss of junior doctor hours in such a short period of time.
In 2000 an amendment was made to the Directive which brought junior doctors within its scope and a timetable was agreed which phased-in the 48-hour weekly limit over 5 years from 2004. In that year, the limit was set at 58 hours per week, followed by 56 hours by 2006 and, finally, at 48 hours by 2009.
The NHS attempts to comply with the Directive were complicated by the SIMAP (2000) and Jaeger (2003) judgements in the European Court of Justice. These judgements altered the definitions, firstly, of working-time to include on-call time, and, secondly, of compensatory rest. Indeed, the Government used these judgements as a reason to a 2004 Select Committee on European Union for not meeting the target of implementing the 58-hour maximum working week by 2004. John Hutton, M.P., Minister of State at the Department of Health, stated that, “Had it not been for the SIMAP and Jaeger rulings I do not think we would have had a problem in the NHS in dealing with the Directive.” This excuse rings hollow when set beside the statement by the NHS Confederation, representing NHS employers, who told the Select Committee that “reducing the hours worked by junior doctors had been a priority for the NHS long before the 2000 amendment to the directive was agreed.”
The NHS also missed the 2009 deadline to reduce junior doctors’ hours to 48 hours on average. Derogations were granted to the NHS which allowed an interim average 52-hour working week to apply until August 2011, or exceptionally to August 2012, for specific rotas or posts that could not comply with the legislation. According to a 2010 BMA survey, more than half of the respondents regularly worked in excess of 56 hours in a seven-day period, and 32 per cent worked more than 65 hours in a week. So much for the NHS priority in reducing junior doctors’ working hours.
As unconvincing as the NHS has been adhering to its multi-phased implementation of the Working Time Directive, its claims that junior doctors’ working hours and rotas fully comply with the legislation are even more implausible. According to the NHS, it achieves compliance by averaging rostered hours over the reference period of 26 weeks. It then conducts 6-monthly audits when junior doctors are meant to record their actual hours worked.
The legislation stipulates that a worker’s time shall include overtime when applying the limit of 48 hours per week but the NHS does not adhere to this rule. It also ignores the National Surveys conducted by the GMC which show that year after year an average of 50 per cent of junior doctors work beyond their rostered hours on a daily and weekly basis. These are inconvenient facts which the NHS ignores when it claims that the hours junior doctors’ working hours and rotas fully comply with the Working Time Directive.
The NHS also ignores evidence disputing the veracity of the 6-monthly returns and the integrity of the process. Until 2012, the GMC survey asked junior doctors if they had been asked or felt pressured to submit a record of hours worked which were compliant with the Working Time Directive when their actual hours were NOT compliant. Ten per cent responded that they had come under pressure to falsify the return. The question has not appeared since then but the pressure on junior doctors to falsify the returns has continued.
A 2014 study documented a range of techniques which were deployed to achieve apparent compliance during monitoring periods. They included the following:-
- doctors asked to sign statements saying they will stay after scheduled hours only for “their own educational purpose”
- doctors asked to repeat the monitoring exercise if the hours they submitted were non-compliant: second period scheduled for the doctor’s annual leave week
- extra staff employed for the duration of the monitoring period
- consultants refusing to counter-sign non-compliant returns
- threats of failure to sign-off Foundation Year1 if non-compliant returns are submitted
- threats of failure in career progression if non-compliant hours are submitted
- threats of being labelled with “poor time keeping” on end-of-rotation assessment
- hours recorded by the NHS as compliant when doctors claim they submitted non-compliant forms.
The study also reported more insidious pressures such as seniors being “institutionally opposed” to hearing complaints from juniors; doctors being emotionally blackmailed or bullied into reporting only rostered hours; individuals being made to feel that working excessive hours was a personal failure of time management rather than the consequence of a systemic mismatch of workload to staff.
The NHS claim that junior doctors’ hours comply with the Working Time Directive does not stand up to even the most cursory of examinations. It is based on a combination of clear statistical manipulation and unreliable periodic sampling which is open to abuse and is abused. These methods may be consistent with the letter of the law as interpreted by the NHS, for example meeting the limited requirement to keep “adequate records.” However, they are contrary to the spirit of the legislation which surely requires meeting the higher standards required of health and safety legislation.
The NHS has employed such discredited practices for twenty years. It will be interesting to note how quickly it responds to the decision in May 2019 by the ECJ which has ruled that the Working Time Directive requires employers to keep records of actual time worked by staff – see Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE.
Fundamental reform is required to abolish these discredited practices and to implement the Working Time Directive as intended. Hence the changes which I’ve proposed in my campaign:-
- junior doctors should not work more than 48 hours in any 5-day period
- working periods should be followed by 2 days off
- actual working hours should be recorded.
I ask you to support my campaign by writing to your political representatives in the Westminster and Scottish Parliaments and Welsh and Northern Irish Assemblies. Please use the template letter I have provided in an earlier post.
The 1998 Working Time Directive legislation was intended to limit time spent at work in order to protect the health and safety of workers. The NHS and Governments have had 20 years to comply with the terms and the intent of the legislation. They have failed to do so. Implementation of the Working Time Directive is long overdue and there must be no further delays.