Legal advice

The legal implications of WTD, including its enforcement, sanctions and penalties, were spelled out by representatives of Bevan Brittan in six fully booked sessions at the exhibition.

Lawyers Duncan Astill and Sarah Michael from the firm which advises organisations in the NHS and wider health sector, reminded delegates that ‘the overarching principle’ of WTD is that it was designed as a health and safety measure.

Sarah Michael, senior associate in Bevan Brittan’s employment team, said: “It is to avoid staff working long hours without sufficient rest, posing a potential risk to their individual health and safety and to the safety of the patients in their care.”

She explained that enforcement of the directive would be split between the Health and Safety Executive (HSE), local authorities and employment tribunals.

The HSE could issue ‘improvement’ or ‘prohibition’ notices which, if breached, could lead to criminal prosecutions. Penalties for conviction are up to two years’ imprisonment in a Crown Court and up to three months imprisonment and a fi ne of up to £5,000 in a magistrates’ court.

Ms Michael said that employees could bring a claim at an employment tribunal even though there is no specific claim available for a breach of the maximum working week. Instead they could claim detrimental treatment or unfair dismissal for refusing to work longer than the prescribed time.

“Prevention is better than reactive cure,” she urged her audiences.

The lawyers explained the recent agreement by the European Council of Employment Ministers to support changes to WTD which may go some way to addressing early UK concerns.

In June, the Ministers agreed that on call time should be split into ‘active’ time to be counted as working time and ‘non active’ rest time, which may not be counted.

Although the 48 hour opt out is likely to remain, it may have additional safeguards to prevent anyone being allowed to opt out during their fi rst month of employment or being victimised for not choosing to opt out.

But Ms Michael emphasised that the agreement of European Ministers must now go fi rst to the European Parliament, then to each individual national government before changes can be made, a process which “could take until 2011/ 2012.” www.healthcareworkforce.nhs.uk/wtdexhibition2008