Published: 24/02/2005, Volume II5, No. 5944 Page 29

The European Court of Justice's Jaeger case brought up some important issues around rest entitlement - for example, the laws for junior doctors working a series of 10-hour daily shifts while on call overnight. If they are called out between shifts, can they insist on having sufficient hours added onto their rest period to fulfil the legal minimum?

The problem is that in Jaeger the court stated that compensatory rest must be taken 'before commencing the following period of work'. So if the 11-hour rest period is interrupted for longer than three hours, the doctor is entitled to delay the start of their ordinary shift the following day.

In Jaeger, the court was considering a period of extended work in which the eight-hour shift and the 16 hours on call were both treated as 'work'.

For trusts, it may be possible to draw a distinction between providing compensatory rest following an extended period of work, and compensating a doctor following an interrupted rest period.

This was perhaps anticipated in last year's Department of Health guidance, which suggested that compensatory rest 'should be taken as quickly as possible after the end of the working period'.

The directive allows for 'exceptional cases in which it is not grant...compensatory rest'. How might trusts demonstrate that such grounds exist?

One way might be to show just how often the junior doctor was called out for more than three hours.

If rarely, perhaps such an event could be termed 'exceptional'.

Another possibility might be to show that it was impossible to provide compensatory rest prior to the doctor starting work the following morning.

Trusts could perhaps argue that, as they cannot predict when excessive interruptions may occur, it is appropriate to assume that doctors given additional rest time over the 11-hour minimum will be available for sessions the following day. Trusts could also arrange that such doctors undergo a health check to ensure they are fit to return to work.

Marc Meryon is a partner with law firm Kennedys.