Days before the 1st August deadline Skills for Health - Workforce Projects Team (WPT) hosted an online interactive European Working Time Directive Q&A forum where junior doctors could put questions to a panel of experts who were on hand to answer live questions surrounding EWTD.
Facilitator Tim Lund, EWTD programme lead at WPT commenced the session by introducing fellow panel members consisting of: David Grantham, NHS Employers, Debs White, BMA Junior Doctors Committee and Masood Ahmed, Cloud9 Consultants.
Below is a selection of the questions and answers from the session.
Q1. Is the panel confident that the NHS will be ready for EWTD from 1st Aug?
The NHS has taken some big steps forward in trying to meet the EWTD. Things won’t be perfect but it is certainly a high priority in trusts. The important thing is to keep the momentum going and for trusts to continue their efforts to maintain compliance and improve training.
Employers have told us that they are ready, but of course they are concerned about the potential impact of a pandemic flu outbreak. I expect there will be some areas where compliance is a bit shaky. Rotas need adjusting and arrangements working through. What we need to concentrate on now is really ensuring that within 48 hours, doctors are getting the training they need.
Is the NHS ready? Well I don’t think the NHS will collapse on 1st August - but I do think there is still a lot of work to do to make sure sustainable EWTD solutions that are good for the service, good for training and good for doctors’ work/life balance are embedded in the NHS.
Q2. If we have vacant posts and are having difficulties recruiting and securing locum cover, would you suggest we apply for derogation at this stage?
It is difficult to say when we will have a full establishment. We have a number of people who require work permits.
There will be a further opportunity for employers to apply for derogation (giving permission for a 52 hour week) in the next few months. SHAs have been asked to monitor the position over August. You will need to assess the position once recruitment is known. I guess you must also be supporting the vacancies at present through individuals who have ‘opted out’ or external locums. Again it’s a local matter to consider how sustainable that is but there will be a further derogation opportunity.
If long term vacancies continue then it might be time for your trust to start looking at different types of solutions. For example, moving to a more consultant based service or the types of service redesign solutions introduced at the Homerton and Royal Liverpool & Broadgreen. All these pilot solutions have been independently evaluated and the results are on the healthcare workforce portal: www.healthcareworkforce.nhs.uk/pilotprojects
Q3. If junior doctors opt out of the 48 hour week, will employers be allowed to give us a 56 hour week rota straight or will they have to consult us to add the extra 8 hours a week?
The opt out is for an individual, so the trust would have to arrange the extra hours with you and agree how it was to be paid eg change in supplement or pay as a locum. Banding for the rota stays the same as others may not have opted out.
The normal New Deal and contract arrangements must be followed for rota changes. All the opt out option does is allow more than 48 hours.
The Junior Doctors’ Committee has just published new guidance on the individual opt out and on rights and responsibilities around rota gaps both of these pieces of guidance are linked to from the EWTD section of the website. www.healthcareworkforce.nhs.uk/jdcguidance
The Academy of Medical Royal Colleges and other key stakeholders agree that it is best not to fill the core rota with opted out hours - that is high risk. The flexibility opt out gives for internal locums etc can be a real benefit though.
Any employer designing the service around 56 hour week rotas and hence banking on doctors voluntarily opting out is using a risky strategy.
Q4. If you wished to do extra locum shifts in your main or another hospital, would you still have to stick to the 48 hour or 56 hour week that you agreed to? What happens if an individual went over that? Is that an individual’s responsibility or the trust’s responsibility?
If doing locum work at the same trust, the employer should be keeping a record of your extra hours; remember the rest requirements stay the same so you can’t break those rules even with the opt out. It’s a good idea to let your main employer know if you are working elsewhere. Working too many hours may get you extra cash but if you are not rested then you may not be clinically at your best.
If you are working under the national junior doctor TC’s you cannot work more than 56 hours across all your employments, including locums in other organisations. If you are working more than 48 hours your employer will expect to know about this, and have an opt out from you.
Penalties for breaking the Working Time Regulations (WTR) - the UK law enacting the EWTD - include fines and imprisonment, though improvement notices are likely to be the first action from the Health and Safety Executive (HSE) if they are asked to investigate WTR noncompliance.
This is right. It is often forgotten that EWTD is about the health and safety of juniors. Well rested doctors perform better and hopefully also achieve a better work life balance. Training is the major issue and that is the challenge we must tackle in order to maintain the current standard of consultants and GPs.
Q5. If doctors work extra hours outside EWTD will they be insured under the indemnity?
Where you work over the limits ‘accidentally’ for service reasons (ie not under an opt out agreement) the NHS Litigation Authority has been pretty clear in statements they made when the 48 hour limit came in for other staff back in 1998, that their attitude is that work being done for the NHS will be covered.
The NHS Litigation Authority has given assurances that work/hours performed for the trust are covered by the indemnity (even if outside the exact EWTD requirements). www.healthcareworkforce.nhs.uk/indemnity
Q6. If junior doctors choose to stay after their rostered shift for training is this counted as worked time?
It depends on what you mean by staying behind. If it does happen occasionally because of an interesting case and provided you are not going to breach rest rules, then it should be OK. But if it is being done on a regular basis then the hours should be recognised as part of your roster. Training under the New Deal counts as work but under EWTD the interpretation isn’t always so clear.
This is always a difficult question. If you absolutely voluntarily choose to stay and are having no part in delivering the service, then it might not be working time. A good roster should allow training in the rostered hours - not encroach on your own time for training purposes.
It’ll depend on whether the employer agrees that the work was required. If it’s simply voluntary attendance and no work is needed or has been agreed an employer is not going to recognise it as work.
This is one area where the pay system, now we reach 48 hours, is perhaps unhelpful, as work over 48 hours can lead to a banding increase providing an incentive to work longer. I am sure no employer would be too bothered about staff being present in the work place beyond required hours where they weren’t asking for extra pay for this. The rotation should ensure that you get the training you need in the 48 hours, but we all recognise some people may want to see if they can take advantage of extra opportunities.
Q7. Is it right that I feel pressured to work and train during my rest breaks?
It sounds like there may be some problems with your rota or how you are expected to work it. It would be a good idea to speak to the clinical tutor at your trust or contact the Deanery or SHA for advice.
If you are a BMA member, you should contact them on support@bma.org.uk
Even if you are not a member, your Regional JDC should be able to assist you. If you are not a member, contact: jdc@bma.org.uk and they will put you in touch with your Regional JDC.
You could also raise your concerns with the regional EWTD lead whose details can be identified in the EWTD FAQs on www.healthcareworkforce.nhs.uk/wtd
Many Deaneries have an Associate Dean to support doctors in difficulty and this might be an option.
Agreements in the NHS covering EWTD make it very clear that anyone raising issues or asserting their rights under the EWTD should not be penalised for
doing so.
Working Time Directive 2009 
