From 1st August the European Working Time Directive (EWTD) 48 hour weekly limit (averaged over 26 weeks) will apply to junior doctors. They have been covered by the EWTD rest break requirements since 2004.

In a small minority of cases, trusts have derogated for specific rotas or groups of doctors in training that faced difficulties with EWTD 2009 implementation. This amounts to 200 rotas out of 6,500 (less than 3%). The working time regulations were amended to allow these doctors to work up to 52 hours for a maximum of an extra two, or exceptionally three, years (until August 2011 or 2012) If you have derogated rotas then your EWTD plan needs to support implementation of the 48 hour week by August 2011.

As with other employees, doctors can opt out of the maximum 48 hour working week. However this should be agreed in writing and no employee can be forced to work more than 48 hours. Employers will also need to consider if it is desirable for an employee to opt out and whether there is a service need they can safely meet. It has to be remembered that EWTD is intended to protect the health and safety of workers and because of this there is no 'opt out' from the rest and leave provisions. Junior doctors' New Deal contracts limit them to an average maximum of 56 hours work per week.

NHS Employers have just issued a press release about the NHS being ready for European Working Time Directive 2009 and swine flu. It confirms that where a service needs additional hours of cover individual doctors can voluntarily 'opt-out' of the 48 hour limit to provide this. Doctors, nurses and other healthcare staff can work longer hours when they need to. During an emergency there are special provisions and flexibility within the regulations for emergency situations.

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The EWTD is a legal obligation and so there are penalties for non-compliance. The rest requirements and other aspects of EWTD, such as leave entitlement, are enforced through employment tribunals. The 48 hour limit is enforced by the Health and Safety Executive who can issue improvement notices. Non-compliance with these notices could lead to fines or imprisonment.

More detail on the penalties is available here >>>

NHS chief executives have requested clarification on indemnity for clinicians working in excess of EWTD limits. Guidance on this issue was provided by the NHS Litigation Authority in November 2007 in respect of CNST indemnity. NHS Employers have produced guidance for NHS trusts in respect of the human resources implications of providing services during pandemic flu outbreaks; this includes a model waiver for staff who wish to opt out of the average 48 hour working week to support the NHS.

The NHSLA guidance letter can be viewed here >>>

Skills for Health - Workforce Projects Team are the lead organisation giving advice and support to trusts implementing EWTD. You can find all our resources and advice on our website www.healthcareworkforce.nhs.uk.

There are also EWTD FAQs on the NHS Employers website www.nhs.employers.org and your strategic health authority should also have a local regional EWTD lead that you can contact for advice and guidance. Regional EWTD leads are found here >>>