The European Working Time Directive requires "urgent and common sense" changes if it is to reflect the modern working arrangements of the NHS.
That is the message from the NHS Confederation's European Office ahead of negotiations between employer and trade union representatives at European level regarding revisions to the legislation. The negotiations present an opportunity to hammer out an agreement on behalf of those who work at and manage the coalface, and who understand the real-life practical implications of their proposals. Talks are expected to cover key issues for the NHS such as the way on-call time is counted and rest periods are enforced.
The NHS Confederation says it is essential the proposed changes address problems with the way the legislation is currently implemented. It says the way the law currently stands can have an adverse impact on working arrangements, staffing levels and patient safety. It can affect continuity of care because of frequent handovers, and trainee doctors having less time to learn valuable skills.
The NHS Confederation is a member of the negotiating body representing public sector employers across Europe. Through its European Office, it speaks for the NHS to influence negotiations. It says the European Working Time Directive must reconcile the need for workers to have adequate rest, with the need for flexibility about how working time rules are implemented on the ground.
The NHS Confederation says any agreement reached must take the specific requirements of essential round-the-clock services such as healthcare into consideration and allow the NHS to implement the legislation more flexibly, taking account of local needs and practices, while at the same time ensuring the health and safety of the workforce.
Elisabetta Zanon, director of the NHS Confederation’s European Office, said:
“This legislation needs a modern approach that fits in with the way our health service works. The NHS provides a large chunk of its care on a 24-hour basis. So it is only right that there should be flexibility about how the rules are applied.
“Patient safety must always be the top priority of the NHS. It is in no one's interest to have overworked, tired doctors. Politicians have tried and failed so far to find a sensible solution, and these negotiations provide an opportunity for people who are in touch with the issues on a daily basis to reach a common-sense agreement, delivering the best outcome for staff and patients, and allowing the NHS to provide a 21st century service."
The NHS Confederation's European Office also says healthcare staff should maintain the right to seek an opt-out from the 48-hour ceiling on working hours so that the NHS can provide a properly staffed service and safe continuity of care.
Why are the rules regarding on-call and compensatory rest an issue for the NHS?
**Compensatory rest – definition and example
Compensatory rest must be provided by employers when a worker’s daily or weekly rest requirements cannot be met. The rest provided should make up for the rest missed; and, under the provisions of the Jaeger judgment, should be taken immediately after the end of the working period.
Example:
A doctor working an evening shift is due to finish at 9pm. She is just finishing her handover to the night doctor when one of the patients has a cardiac arrest. She stays an extra 45 minutes to help out and to talk to the patient’s distressed family, and then goes home for a full night’s sleep. She is due to come in for the morning handover and ward round at 8am the next day. However, that would mean she doesn’t get 11 hours off duty. So because she has to take “immediate” compensatory rest, she isn’t allowed to start work until 8.45am and misses out on essential information which could affect patient care. The NHS Confederation’s European Office says that a longer period of time (rather than “immediately”) within which compensatory rest could be taken, or allowing for a more relaxed timescale to be determined at national or local level, or both (e.g. a more flexible timescale but with an upper limit) would be a good solution.
*Counting of on-call time – definition and example
Staff who are required as part of their duties to be resident in hospital or other place of work out of hours and who are provided with on-call facilities are considered to be ‘working’ during their period of duty. The whole of the resident on-call period counts as working time whether or not the member of staff is working.
Example:
A doctor has been on call all night at a busy hospital; he is restricted to being on the premises but has a room where he can rest and sleep. The first part of the night is very busy but by midnight he is able to take a break for seven hours and have a reasonably full night’s sleep, during which time he is undisturbed. Currently all the time he is on-call is counted as full working hours. The Confederation has argued that employers should be allowed to make some adjustment to allow for the fact that only a proportion of the shift has been spent working.