Working Time Directive Frequently Asked Questions

Do you have a burning WTD 2009 question that needs answering?

Listed below are the commonly asked questions. If you can’t find the answer to any of your questions, submit your question via the online form and the answer will be published in the next issue of Calling Time

Click here to view the online form >>>

What is WTD?

The Working Time Directive (WTD) lays down minimum requirements in relation to working hours, rest periods and annual leave. The directive was enacted in UK law as the Working Time Regulations from 1 October 1998.

The WTD has applied to the vast majority of employees since 1998, with a few exceptions including doctors in training. In 2004, the WTD provisions were extended to doctors whose maximum working hours must be reduced to 56 by August 2007 and to 48 from August 2009.

The main features are:

11 hours continuous rest in 24 hours
24 hours continuous rest in seven days (or 48 hrs in 14 days)
20 minute break in work periods of over six hours
Four weeks annual leave
(For night workers) an average of no more than eight hours work in 24 over the reference period.

Note: If a rest break has to be interrupted or delayed to ensure continuity of care, compensatory rest must be taken immediately after the end of the working period.

This is Europe imposing their rules, can’t we ignore it?

No. This is European health and safety legislation that cannot be ignored. No patient should be treated by a tired doctor and staff are entitled to fair working hours.

The government agreed to implement the European Directive as UK legislation to improve the health and safety and working lives of all employees in this country. It is consistent with the commitment to improve working lives for all NHS staff.

It is the responsibility of NHS employers to implement the WTD for doctors in training with the help the help of a national programme of pilots and support.

What are the SiMAP and Jaeger judgments?

The SiMAP and Jaeger cases were brought before the European Court of Justice (ECJ) by a Spanish medical union and a German doctor. In both cases, the ECJ ruled that on-call time, when a doctor is obliged to be resident in a hospital or health centre, counts as working time (for example, a doctor resident on-call but asleep counts as working).

In Jaeger, the ECJ also ruled that compensatory rest for missed rest must be taken immediately after the end of the working period, rather than aggregated and taken at a later time. Although the judgments applied to particular cases, the assumption has to be that the same interpretations would apply to any UK doctors working similar patterns. Further information is contained in Jaeger Judgment: information for NHS and social care employers on the DH website.

Will SiMAP and Jaeger be reversed?

The European Council of Employment Ministers has supported changes to WTD including:

Legal certainty for the continuation of the individual opt out
An end to resident on call time being counted as work and flexibility over the timing of compensatory rest breaks.

The lengthy legislative processes in Europe will mean that any changes to the WTD will not be implemented by August 2009. Employers should continue to plan to implement the WTD for doctors in training based on current legal interpretations. There are no guarantees that any changes/amendments will add significant flexibility because the European Parliament has been reluctant to remedy SiMAP/Jaeger issues in the past. For more information see cover article.

Can't we get an extension? 2012 has been mentioned?

NHS employers need to continue to plan for full implementation of the directive for doctors in training from 2009. The WTD provides a great opportunity for transforming care delivery. It is about faster treatment for patients, a better patient experience and a better working environment for staff. The UK has already negotiated the phased implementation of the working hours requirements for doctors in training. The timetable includes the possibility of implementing the 48 hour week in 2011 or 2012, in parts of the NHS that can clearly demonstrate significant difficulties in achieving the August 2009 date.

The Government is monitoring evidence of NHS readiness for fully implementing the 48 hour week for doctors in training. This will inform their assessment of whether to approach the European Commission to use this derogation to support particular services or specialties.

Can trusts simply ask junior doctors to sign the opt out from the WTD?

Opting out of the working hours requirement is entirely voluntary, so no member of staff can be pressured into signing up to it. If an individual chooses to opt out and changes their mind, they need to give between one week and three months notice (depending on period agreed when signing the opt out). These features of the opt out make it difficult to plan services with confidence.

If a doctor in training chooses to opt out they cannot exceed an average of 56 hours of active work, or 72 hours including resident on-call time per week, as specified in their New Deal contracts. How is ‘working time’ currently defined by the Working Time Regulations?

Under the Working Time Regulations ‘working time’ means any period during which the individual is working, is at the employer’s disposal and is carrying out their activities or duties.

Working time includes:

Any period during which the employee is receiving training in connection with the job
Travel time during the working day
Time spent waiting at the place of work for work to be allocated
Time spent working away from home
Time on-call at the workplace.

Working time does not include:

The journey to or from the workplace and home
Time resting at the end of the working day, even if the worker is required to stay away from home overnight
Time spent ‘on-call’ when away from the workplace and not carrying out duties.

Who is responsible for enforcing the 48 hour week if an employee has more than one job?

If an employee has more than one job both employers are responsible for enforcing the 48 hour week. Employers are advised by the Department for Business, Enterprise and Regulatory Reform (BERR) to ask each worker if they have any other employment and then make any necessary adjustments to the working patterns.

What are the daily break provisions under the Working Time Regulations?

Adult workers (aged 18 and over) whose daily working time is more than six hours are entitled to an uninterrupted rest break of 20 minutes. This does not mean every six hours but that after six hours of work, the worker is entitled to a rest break of 20 minutes.

How is the 48 hours a week limit measured?

The limit is measured as an average across a reference period. This means that the regulations allow for some weeks for the work to be over 48 hours (as long as rest requirements are met). The reference period for most workers is 17 weeks. However, for junior doctors the reference period is 26 weeks. This means that the average should be worked out over a 26 week period. This average applies to individuals - it is not the average working hours for a team.

Annual leave workers are legally entitled to - currently 24 days a year - get excluded from the reference period. However, any additional days taken under more generous provisions given by employers can be counted as 0 hour days under the regulations and must be taken into account when calculating the average hours.

Trusts are typically only using the two week diary card monitoring data to calculate the average working hours of their doctors under WTD. This method does give a good estimate. However, if any claim was to be made about a breach of WTD hours limits then the working hours would need to be looked at across a 26 week reference period.

Is WTD linked to pay?

The New Deal is part of the terms and conditions of the junior doctors and these set out how pay is linked to the rota and hours worked. WTD is not linked to pay in the same way and is separate from the New Deal. WTD 2009 compliant rotas are likely to fit into 1A/1B/1C banding supplements of the New Deal but there are some limited situations where this may not be the case.

Font size