Website of the Department of Health

• Download complete guidance on implementation for doctors in training - Gateway reference 2167 (PDF, 38K)
• HSC 2003/001 - Protecting staff; delivering services: implementing the European Working Time Directive for doctors in training
• HSC 1998/204: Working Time Regulations implementation in the NHS
• DTI guidance "Your Guide to the Working Time Regulations" (opens new window)
• The Working Time (Amendment) Regulations 2003 (SI 2003/1684) on the Stationery Office website (opens new window)

The Working Time Directive (Amendment) Regulations 2003 - Derogation

The provisions of the Working Time (Amendment) Regulations 2003

From 1 August 2004, doctors in training will be subject to weekly working time limits, which will be phased in as follows:

It is not possible to derogate from the average weekly working time limit, only from the rest requirements.

Doctors in training are already restricted to no more than 56 hours' actual work on average per week from 1 August 2003, as part of their contract.

An individual junior doctor can sign a waiver and 'opt out' of the 58-hour  ceiling after 1 August 2004, but contractually can do no more than an average of 56 hours actual work a week. The waiver is voluntary and workers cannot be required to sign it.

Workers cannot 'opt out' of the rest requirements.

Reference period

The average weekly working time of doctors in training is averaged over a 26-week reference period. Days when the doctor is absent on leave should be excluded from the calculation.

Where a doctor in training has worked for his/her employer for less than 26 weeks, the reference period applicable is the period that has elapsed since s/he started work for the employer.

What is "working time"?

NHS Employers should ensure that appropriate records of hours worked are kept where necessary. Regular checks on working hours are already routinely made in the course of the "New Deal" diary monitoring exercises (see AL(MD)1/01); employers should be aware that these do not measure working time as defined under WTR but can be used to indicate where further monitoring may be necessary.

However, employers should note that the New Deal and Working Time Directive definitions of "work" and "rest" differ and cannot simply be merged from August 2004, as they deal with similar but not entirely overlapping issues. The 'New Deal' definition of work underpins the junior doctors' contract, while the Working Time Directive definition applies to health and safety legislation. It will continue to be necessary to consider the implications of both systems when designing rotas

The Regulations state that working time is when someone is "working, at his employer's disposal and carrying out his activity or duties".

The SIMAP and Jaeger cases

On 3 October 2000 a judgement was passed at the European Court of Justice (ECJ) in a case concerning the status of 'on-call' time.* The judgement related to doctors employed in primary health care teams though a similar approach may now be taken in other areas. It indicated that 'on-call' time will be working time when a worker is required to be at their place of work. When a worker is away from the workplace when 'on-call' and accordingly free to pursue leisure activities, on-call time is not 'working time' unless the worker is actually called in to work.

The recent ECJ judgment on 9 September 2003 in the "Jaeger" case (Landeshauptstadt Kiel v Dr Med Norbert Jaeger, case C-151/02) has confirmed the SiMAP judgment.

The implication of SIMAP and Jaeger for the NHS is that time spent resident on call for clinical purposes will count as "working time" in its entirety, even if the doctor in training is resting (or even sleeping) for the whole of the on call period.

This means that resident on call working patterns will not be a sensible use of doctors' time in most cases. Where the intensity of work merits it, doctors could work a full shift; where the work is of low intensity, a non-resident on call arrangement would be preferable.

Employers will also need to go back to first principles and look at whether the service for patients could be delivered completely differently, for example by

Further examples are contained in HSC 2003/001.

Derogation from the Directive's rest provisions

The rest provisions in the 2003 Regulations which are outlined below (length of night work, daily rest, weekly rest, and in-work rest breaks) do not apply in relation to a worker whose activities involve the need for continuity of service or production, as may be the case in relation to services provided by hospitals - specifically including the activities of doctors in training.

The Government has specifically disapplied these provisions in respect of doctors in training in order to give NHS employers the flexibility to plan services around patients without being rigidly tied to certain patterns of rest for junior doctors. However it is important to realise that this does not mean that doctors in training are not entitled to minimum periods of rest. The rest provisions in the Regulations are disapplied subject to compensatory rest, which means that the doctors should be allowed to take an equivalent period of compensatory rest.

Compensatory rest

Compensatory rest is a period of rest the same length as the period of rest, or part of a period of rest, that the worker has missed. The purpose of the derogation is to ensure that where necessary this rest can be taken at times that fit in around patient services.

Where possible, however, it is probably simpler for NHS employers to plan staffing patterns so that doctors in training receive their full rest entitlement under the Regulations and the need for compensatory rest is minimised.

The full implications of the European Court of Justice judgement on Jaeger are still being considered. Further information about this in relation to compensatory rest will be issued as soon as possible.

• Download table of rest provisions (PDF, 30K)