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Last Updated: Friday, 5 September, 2003, 15:44 GMT 16:44 UK
On call rulings: A headache for the NHS?
Analysis
By Sarah Toyne
BBC News Online business reporter

Doctor
Junior doctors are to have their hours curbed over next few years

The legal victory of the Harrow care home workers who were required to be "on call" at work for 76 hours a week could blow a chilly wind through UK and European public services.

The employment tribunal said the council had not given the women proper daily rest or given them the national minimum wage for their time on standby - and decided the 76 hours the workers were on call counted as work.

Harrow council is considering appealing against the finding, which is the first case to test Department of Trade & Industry guidance on "on call" work, which itself is based on a European ruling.

While the care workers are toasting their victory, the ruling could have big implications for junior doctors - and is a potential headache for the NHS.

Spanish doctors

"Doctors in training" are currently exempt from the Working Time Directive - and can therefore work unlimited hours.

But the directive is gradually being phased in for junior doctors, whose weekly hours are supposed to be no more than 58 hours in 2004 and 48 hours in 2009.

WORKING TIME DIRECTIVE
No more than 48 hours work per week (averaged over a reference period)
11 hours continuous rest in 24 hours
24 hours continuous rest in 7 days (or 48 hrs in 14 days)
20 minute break in work periods of over 6 hours
4 weeks annual leave
Provisions for night workers
The European Court of Justice judgement was won by Simap, a Spanish doctors' union, which had complained that time spent by doctors "on call", either at the medical centre or away from it, counted as "Working Time" and therefore towards the 48-hour week.

The ruling decided that time spent by Spanish doctors on call at their place of employment, but not actually working, was working time.

In contrast, time spent on call when workers were required to be contactable, but were not at work, and could pursue their leisure interests with fewer constraints, could not be classed as working time.

This ruling now forms the existing DTI guidance on "on call" hours.

Once junior doctors switch to a shorter working week, and when the "on call" guidance is taken into account, the implications could be big for the NHS.

In theory, it could mean that a junior doctor living in and working a 48-hour week, of which 12 hours was spent "on call", could spend only 36 hours attending to patients.

Jaeger judgement

The Department of Health and the DTI are waiting on a decision next Tuesday concerning a German doctor, Norbert Jaeger.

Mr Jaeger claims that time spent on call at the hospital is working time.

Mr Jaeger has worked as a doctor in the surgical department of a hospital in Kiel since 1 May 1992. He stays in the clinic and carries out the work that is assigned to him.

He is provided with a room, shared with two colleagues, where he may sleep when his services are not required - but Mr Jaeger claims that time spent on call at the hospital is working time.

His hospital says periods of time where doctors are on call but are inactive should be regarded as rest periods rather than working time.

"We are going to be looking at what the court says and taking it into consideration in the run up to the Working Time directive's implementation," says a spokesman from the Department of Health.

Legal cases

The European Commission is about to embark on its six-month review of the Working Time Directive.

While it is expected to look at the UK's current opt-out position, it may also examine "on call" working within its brief.

One of the problems is that current legislation is very ambiguous, says Paul Sellers of union umbrella group the TUC.

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

Mr Sellers says clarification is needed about which type of "on call" work is classed within working time.

But he says that the NHS should not be disrupted.


SEE ALSO:
Women win 'on call' battle
05 Sep 03  |  Business
Better rights for long hours staff
31 Jul 03  |  Business
Doctors may sue over hours
01 Aug 03  |  Health


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