The European Working Time Directive: time to change?
Authors: Shreelata Datta, J Chatterjee, D Roland, J E F Fitzgerald, D Sowden
Publication date: 06 Sep 2011
Shreelata Datta and colleagues give an update on how working time regulations are affecting training and practice
Four letter acronyms have had a great influence on UK trainees in the past decade, from the chaos of the Medical Training Application Service (MTAS) to concerns over workplace based assessments (WPBAs). But none has caused more speculation than the European Working Time Directive (EWTD). On 1 August 2009 the directive—often referred to as the Working Time Regulations in the United Kingdom—came into force for all UK doctors in training. It is an essential piece of health and safety legislation aimed primarily at employees who work long hours, including healthcare professionals. The thinking behind the legislation as it applies to healthcare is that well rested doctors provide better and safer care of patients and that doctors in training can learn considerably more efficiently when they get sufficient rest. All European Union member states must adhere to the directive in full, with the aim of protecting doctors from the dangers of overwork and protecting patients from overtired doctors.
The directive provides for measures to include one rest day a week (24 hours in seven days, which can be aggregated to 48 hours in a 14 day working period); a maximum working duty period of 13 hours, allowing 11 hours of rest a day; and a 20 minute break over six hours worked. These measures were reinforced by the Sindicato de Médicos de Asistencia Pública (SiMAP) and Jaeger rulings of the European Court of Justice, which defined working time and compensatory rest, respectively (box).
The SiMAP and Jaeger rulings
SiMAP ruling: Any time that a doctor is on call counts as working time if the doctor is expected to be available immediately
Jaeger ruling: Any doctor who is resident and on call is working even if asleep or otherwise resting, and any compensatory rest needs to be taken before the next shift starts
The direct effects of the EWTD have been as intended: overall working hours needed to fall, and they have. However, much in medicine revolves around mitigating the effects of unintended consequences, and the EWTD certainly has had a few. Experience of implementation is mixed, and concerns remain that the directive can fragment patterns of care. Its immediate effect has been to increase gaps in rotas in many specialties, to alter exposure to training opportunities, and to change the shifts worked, in many cases increasing antisocial working hours. Under pressure to consider the effects of the SiMAP and Jaeger rulings, the European Commission has launched a “social partner consultation” on revising the EWTD (the commission uses the term social partners to refer to representatives of management and labour, such as employers’ organisations and trade unions). A plan to revise the directive’s opt-out provisions was launched in 2004 but abandoned as member states could not reach agreement. In this article we look at the consultation in progress and what it might mean for junior doctors in the UK.
The European Commission is likely to focus on clarifying on-call time and compensatory rest. Key areas include:
Allowing periods of on-call time to be counted differently—this could potentially allow doctors undertaking non-resident on-call duty to work more hours continuously
Revising compensatory rest requirements—examining whether rest should be taken immediately after a period of “overwork,” as stipulated by the Jaeger ruling
Redefining the “reference period”—currently all workers must work an average of 48 hours or less over a period of six months or the duration of a post. Extending this reference period, to help employers average out their employees’ hours over a longer period, could cause problems for junior doctors on a short rotation and for senior hospital doctors wanting to alter their job plans
Reviewing whether the directive should apply to each worker or to each contract—which would affect doctors on multiple contracts. With the changes in the Health and Social Care Bill, more doctors may work for more than one employer, which would make this ruling difficult to enforce.
The consultation period occurred over this summer, and further negotiations are due to start later this year. These may continue for nine months, although they could collapse at any time if no agreement is reached among European level organisations. If the European Commission publishes a new legislative proposal it is likely that it will focus on SiMAP and Jaegar (on-call and compensatory rest) and perhaps some work-life balance issues, but it is unlikely to reopen the debate on the opt-out for the time being.
Many bodies and institutions involved in postgraduate medical education have commented on, surveyed, and researched the effects of the EWTD. We describe some of these conclusions below.
Effects of the EWTD in obstetrics and gynaecology
The obstetrics and gynaecology specialty is unique in that it is craft based but also provides 24/7 resident on-call acute services. A survey done last year found that 80% of respondents worked a full shift rota pattern, which Temple identified as leading to more handovers and reduced trainer-trainee interactions. Four fifths (82%) of trainees believed that the directive had reduced training opportunities, and half (52%) observed that job satisfaction had been reduced. Just over half of trainees believed that their work-life balance had improved.
Possible solutions include optimising training opportunities and using structured handover as a learning opportunity. A reorganisation of who will provide which specialist services at consultant level and which units are staffed by trainees could be investigated further. Before the introduction of the EWTD the Royal College of Obstetricians and Gynaecologists identified a need for a consultant led service to ensure patient safety and provide better supervision and training opportunities. However, any change in consultant work patterns must be carefully implemented and remunerated appropriately. The college is not alone in raising such concerns: the Royal College of Paediatrics and Child Health recently published Facing the Future, which identifies a need for enhanced consultant led care, reconfiguration of existing services, and a review of trainee placements in smaller units.
The strength of feeling in surgery regarding the EWTD has been widely reported in the mainstream media. It has been argued that to promote the directive as health and safety legislation is disingenuous, given that the resulting shift work creates more irregular working hours and longer periods of on-call work. It has also been highlighted that, because the 48 hour rule is averaged over a six month reference period, seven consecutive night shifts are entirely permissible, increasing the risks of a tired, error prone doctor. A survey by the Association of Surgeons in Training showed that of 1510 surgical trainees responding, 67% did clinical work while off duty to “protect their training,” 75% were not happy to be working an EWTD compliant rota, and 84% had seen no improvement in work-life balance.
Many acute surgical specialties and provider organisations have never achieved compliance with the EWTD. Even in those that claim compliance, surgical training has, to an extent, been driven underground in many units, with unreported and unregulated working hours. It is further reported that “grey rotas” are not uncommon, whereby hours actually worked have limited resemblance to those set out on paper by employers. The result is that considerable uncertainty remains concerning the hours that surgical trainees are actually working, a situation that is potentially more unsafe than a modest increase in regulated hours.
Many accept that it may be possible to train a surgeon in a 48 hour working week. However, the problem lies with turning this into a reality. The current NHS often does not prioritise or offer sufficient support for postgraduate apprenticeship and learning alongside service delivery. Without considerable investment and a fundamental shift in NHS priorities, there is no realistic prospect of this changing.
The BMA supports the principles of the EWTD as it currently stands. Where there are problems in balancing full implementation with training, the BMA believes that the problem lies largely with the design of training programmes and hospital rotas. If the directive is to be revised the BMA would prefer the revision to focus on the issues of on-call time and compensatory rest, without diluting the SiMAP and Jaegar rulings. The BMA believes that all time spent on call at the workplace should be counted as working time and that compensatory rest should, normally, be taken as a matter of priority after a period of overwork, in accordance with the SiMAP ruling. The BMA does not consider that a wholesale review of the directive is needed.
However, the calculation and timing of compensatory rest, and when it should be taken, still need to be clarified. The current rules on compensatory rest are unworkable, mainly because there is no clear guidance within the directive about how it should be taken. Either the directive should be more specific in how compensatory rest should be applied or it should direct member states to collectively bargain a sensible method of implementation that is flexible and fair enough to allow compensatory rest to be taken without undermining health and safety principles or the safety of patients.
Maintaining the possibility to opt out is essential for doctors who are able to determine their own working hours and should not be jeopardised. Equally, it is important that doctors are not pressured to sign an opt-out against their will. To this end, the individual opt-out agreement should not be allowed to be presented at the point of appointment or signing of a contract. Member states should also take national measures to ensure effective monitoring of hours, as is currently foreseen in article 22(1) of the directive.
The European Commission is considering the responses made to its consultation in the forthcoming months. It may then decide to try to revise the directive by forging an agreement with social partners and avoiding the need to start a new legislative process. This may not work with the EWTD, because of the diverse interests of the social partners (for example, business organisations versus trade unions). If it decides that a social partner agreement won’t work then it will aim to publish a new legislative proposal in the autumn. This would go through the “co-decision making process,” which means that members of the European parliament and national governments have an equal say in forging the legislation. This can take two to three years.
Regardless of doctors’ views, it is difficult to argue that the EWTD has not highlighted that “training” has always been poorly defined and often inadequately delivered. It is this that has caused the biggest problem in defining the effects of the EWTD. The literature is increasingly abundant in dissatisfaction with the EWTD and concern over training opportunities and training time.  Getting agreement on any change among all member states may prove challenging, and any changes to the EWTD will take time to be translated into a reality. Doctors across Europe must stand united in their approach but must also be sensitive to the needs of other workers affected by the directive, ranging from lorry drivers to lawyers. In the meantime the problem of ensuring that junior doctors have adequate opportunities for education and training remains a key challenge for the medical profession, including trainees and employers alike.
Competing interests: None declared.
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Shreelata Datta co-chair, BMA Junior Doctors Committee, and specialist registrar, Guy’s and St Thomas’ NHS Trust, London, UK
J Chatterjee past chair, Royal College of Obstetricians and Gynaecologists’ National Trainees Committee, and clinical research fellow in gynae-oncology, Hammersmith Hospital and Queen Charlotte’s and Chelsea Hospital, London
D Roland chair, Academy of Royal Colleges Trainee Doctors Group, and chair, Royal College of Paediatrics and Child Health Trainees’ Committee
J E F Fitzgerald immediate past president, Association of Surgeons in Training, and specialist registrar, Colorectal Surgery Unit, Royal Marsden Hospital, London
D Sowden chair, Conference of Postgraduate Medical Education Deans of the United Kingdom
Correspondence to: S Datta firstname.lastname@example.org