EMPLOYMENT LAW: LAW AT WORK

Will possible new exemptions to the European working-time directive affect its implementation?

Q Preparation for the European working-time directive coming into force for junior doctors on 1 August seemed to be a huge priority earlier this year.Now there are rumours that the law will be amended next year to make some groups, including junior doctors. exempt.Are we being let off the hook?'

A The simple answer is no: '1 August is not a moveable deadline.Compliance is neither negotiable nor optional' (Minister for Health, May 2004). Implementation will be a challenge: 'The European working-time directive will be difficult to introduce fully by August 2004 without putting the delivery of health services at risk' (UK submission to the European Commission, February 2004).

You are right: the problems are now so great that the directive is likely to be amended to make compliance easier.But that has not happened yet.Meanwhile the new rules will have legal effect.

The headline provision is the 48-hour working week.For junior doctors, this is to be introduced in stages, beginning with a 58-hour maximum from 1 August 2004 (reducing in stages to 48 hours).This should have caused no problem because under the New Deal no junior doctor should have been working over 56 hours a week (with 16 hours of resident on call) since 1 August 2003.

These plans were thrown into chaos last September by the European Court's Jaeger judgment on 'working time'.This said that time spent on call is working time, whether or not the individual is working.This includes time resident on call in its entirety, even if the worker is asleep.

The directive also gives a right to 11 hours of rest per 24 hours.This requirement is relaxed where there is a need for service continuity.A system of 'compensatory rest'allows rest to be saved up and taken later.The Jaeger judgement limits this ability to carry rest forward, making non-resident on-call difficult.

The EC is rushing through changes to the directive. I am told that 'rush'means within one to two years.

David Lawson is a barrister specialising in employment law and the public sector.