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Editorials

Goodbye to the European Working Time Directive?

BMJ 2016; 354 doi: https://doi.org/10.1136/bmj.i3702 (Published 06 July 2016) Cite this as: BMJ 2016;354:i3702
  1. Andrew F Goddard, the registrar
  1. Royal College of Physicians, London, UK
  1. andrewgoddard{at}nhs.net

Not yet, and not without an act of parliament

The tornado that was the EU referendum has, for some, allowed the colourful possibility of overturning the unpopular European Working Time Directive (EWTD). This would, they claim, create a new era where UK trainees didn’t have to travel half a world away for a better working life. The supportive medical “firm” could be restored and teams could link arms and skip happily into a new future, or perhaps a nostalgic past.1

Before the European directive junior doctors worked very long hours, around 90 a week in the 1980s reducing to 72 with the 1991 junior doctors’ contract.2 These long hours allowed continuity of care, the presence of most members of the firm most of the time, and substantial clinical experience (or training as it was called then). Doctors lived on site, and work-life balance and measuring patient safety were abstract concepts.

The European Commission introduced the EWTD in 1993, and the United Kingdom finally fully implemented it in 2009. It stands in British law as the Working Time Regulations 1998.3 Simply put, the regulations stipulate a maximum average working week of 48 hours with at least 11 hours rest between working periods. Individuals can opt out of the 48 hours restriction but they cannot opt out of the requirements on rest. Both employers and individual doctors often forget or overlook this.

The 48 hour week took over a decade to implement for junior doctors. Reduced working hours led to very different ways of working—fragmentation of the team but improved quality of life as viewed by trainees.4

In 2000 and 2003 the European Court of Justice placed further restrictions on EU doctors’ working hours following the Sindicato de Médicos de Asistencia Pública (SiMAP) and Jaeger rulings. SiMAP specified that on-call time where a doctor was on site and expected to be available counted as working time. Jaeger forced compensatory rest to be taken immediately after a shift.5 As a result of these rulings hospitals faced being penalised for having their staff sleep on site and on-call rooms were consigned to history.

The story does not end there though. Junior doctors hours are also constrained by the New Deal contract. Compulsory from 2003, the New Deal introduced a system of pay banding that allowed trainees on onerous antisocial rotas to be paid more than those working shifts. This created a financial incentive for employers to change working practices and was the main driver forcing hospitals to introduce full shift rotas.

These changes coincided with a relentless increase in hospital admissions, reduction in bed numbers, and the need for hospitals to move away from traditional models of “the take.” The firm became a casualty of full shift working, which was needed to service a different NHS from that many senior doctors trained in.

So, following the referendum, is the EWTD dead? I’m afraid not. As the directive is enshrined in UK law it will require an act of parliament to change it. Many trade unions, the BMA included, do not want to see the regulations changed, and it seems unlikely government will rush into redrafting such contentious legislation.

The SiMAP and Jaeger rulings, though, offer more opportunity. They are not held within the Working Time Regulations and thus do not require a change to British law to overturn. The nature of the UK’s relationship with the EU in the future remains uncertain, but many politicians would like to remove the influence of the European Court of Justice from British law. Removing SiMAP and Jaeger would allow more flexibility of on-call working and could be a fruitful test case in the brave new world.

The current junior doctor contract proposed by the government does not seem to offer a radical change in working hours for junior doctors.6 It still allows individuals to opt to work a maximum of 56 hours a week, but rotas will continue to be constructed around a maximum 48 hour average. Furthermore, the complicated arrangements for weekend pay and limits to working consecutive days will result in increased weekend working for most. It seems likely that it will result in more fragmentation of the team. Juniors have just voted to reject the contract.

Arguably, the UK has always had the power to rebuild the medical firm, maintain high quality of training, and keep working hours at a humane level. The solution is to increase the number of doctors substantially, trained either at home or abroad. This is expensive, and the new prime minister will need to open the Treasury purse to achieve meaningful gains in working life for juniors and meaningful gains in safety and continuity for patients.

Footnotes

  • Feature, doi: 10.1136/bmj.i3662
  • @bodgoddard

  • Competing interests: I have read and understood BMJ policy on declaration of interests and have no relevant interests to declare.

  • Provenance and peer review: Commissioned; not externally peer reviewed.

References

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