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Introduction

1. A recent judgment*  in the European Court of Justice (ECJ) - known as the Jaeger judgment - has ruled on the interpretation of the European Working Time Directive (EWTD) in relation to the way in which on-call work should be regarded and the way in which compensatory rest should be taken. This note sets out the implications of this judgment for NHS and Social Care staff including those who work in care homes. NHS and Social Care employers will need to ensure that they are compliant with the requirements of the Directive as implemented in the United Kingdom as the Working Time Regulations (WTR)**  and as interpreted by the ECJ.
*The Jaeger judgment (C-151/02)
**Working Time Regulations 1998 (SI1988/1833) and the Working Time (Amendment) Regulations 2003 (SI2003/1684)

2. This note should be read in conjunction with circular HSC 1998/204 and its associated guidance, and with the WTR. It outlines the position on:

3. All employed staff are currently subject to the WTR with the exception of doctors in training (see paragraphs 12 and 13 below).

Resident on call working

4. Following the Jaeger judgment, 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.

5. Staff who are off-site, non-resident on call or who are not required to be continuously present at the hospital or other place of work are not considered to be working unless called to do so.

Compensatory rest

6. The Regulations provide that compensatory rest must be given when the daily/weekly rest requirements cannot be met. Compensatory rest will most likely be necessary when staff are either:

7. In each situation 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. The implications of the Jaeger judgment are that it will not be sufficient to aggregate the rest available to an individual over a period and assume that the minimum requirements have thus been met.

8. The arrangements for taking compensatory rest will need to be determined locally in the light of circumstances.

9. It is recognised in the Regulations that services such as the NHS and Social Care will have instances where a continuous emergency service must be maintained. Exceptionally, where it is not possible for objective reasons to grant a period of compensatory rest, an employer should afford the worker such protection as may be appropriate to safeguard the worker's heath and safety.

10. Employers must make sure that staff can take their rest so as not to compromise health and safety.

Opt out waiver

Where a member of staff chooses to work in excess of the average weekly hours limit under the WTR, they are required to sign a waiver. If an employee chooses to work for more than one employer the hours worked in all employments are aggregated and if over the weekly limit a waiver should be signed.The employee can opt in again at any time, subject to the notice period agreed.

Doctors in Training

11. Doctors in training will be subject to the provisions of the WTR from 1 August 2004 from when, subject to further specific derogation from the rest requirements, the WTR and transitional working time hours limits will apply to them. In addition there are contractual 'New Deal' limits (see link below to table of requirements) to their working time under the nationally agreed contract for junior doctors (December 2000) which remain in force.

Opt out waiver for junior doctors

12. Opt out waivers are not applicable to doctors in training until 1 August 2004. From this date it is open to a doctor in training voluntarily to sign a waiver as in Paragraph 11 above. However, the contractual terms for doctors in training will still apply, and actual hours worked as defined in the General Guide to the New Pay System should not exceed an average of 56 hours per week over the monitoring period.

Summary and Timing

13. This note provides an outline of the changes and will apply immediately for all employed staff, with the exception of doctors in training for whom it will apply from 1 August 2004.

14. It is the responsibility of individual NHS and Social Care organisations to assure themselves that local arrangements are WTR compliant.