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EU working time directive will include the time doctors spend on call

BMJ 2003; 326 doi: https://doi.org/10.1136/bmj.326.7394.840/e (Published 19 April 2003) Cite this as: BMJ 2003;326:840
  1. Rory Watson
  1. Brussels

    The hours doctors spend on call in hospitals—even if they are not treating patients—should be counted as part of their working time under European Union legislation, according to the top legal adviser to the European Court of Justice.

    The advocate general, Mr Dámaso Ruiz-Jarabo, gave his opinion in a case referred to the Luxembourg based court from Germany that could go a long way towards clarifying complex EU rules. Under European working time legislation three conditions must be met for the hours spent on duty to be classified as working time.

    Employees must remain at their place of work, be at the employer's disposal, and be available to carry out their activities.

    The advocate general, whose role is to advise the judges in the EU's highest court, reasoned that although the intensity and extent of the activities carried out by doctors when on call are not the same as during normal working hours, this does not mean that periods spent on call constitute rest time for the employee.

    Also, the fact that doctors are provided with a bed when on call so as to be able to rest from time to time helps to protect their health, ensuring that they are able to attend to patients properly when required. He also advised that periods of inactivity cannot count as rest periods, especially when the employee is not guaranteed the minimum number of hours of continuous rest.

    The case that led to the recommendation involved a German doctor who was on call six times a month at a hospital in Kiel, Schleswig-Holstein, for periods ranging from 16 to 25 hours. During these periods he had to stay in the hospital, where he was provided with a bed and was compensated for being on call with free time and extra pay.

    The European Court of Justice, which usually but not always follows the advice it is given by the advocate general, is expected to deliver its judgment by the summer.

    Another German case involving an interpretation of the working time legislation is pending at the Luxembourg court. On this occasion the judges are being asked to determine the status of ambulance teams who remain on standby while waiting to be called out.

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