The working time directive will cost the NHS millions and impose heavy new responsibilities on employers. John Northrop and Keith Hearn explain

The working time directive which came into force on 1 October restricts the number of hours employees can work each week and protects them from excessive demands by their employers. The aim of the directive is to protect employees' health and safety by encouraging improvements in the working environment.

Some believed that NHS employers would be exempt from many of the provisions. But the regulations will have a significant effect. Employers will, for example, be required to develop sophisticated recording systems to keep track of staff working hours, rest periods and leave entitlement. Many feel it will require a return to clocking on or the introduction of employee log-books. While payroll systems could provide the information needed, many employers feel that their systems will not do so, or that the data is not accurate enough because staff under-record the time they work.

Under a deal now being concluded between the British Medical Association and the Department of Health, consultants will log on-call time in a diary.

Monitoring time worked will be a particular problem in the NHS because of complicated shift and working arrangements. Keeping track of the hours of nurses who work for a bank or agency in addition to their full-time job will be difficult.

How can employers keep track of staff hours?

By using only regular bank staff and putting them on annualised hours contracts.

By requiring employees to declare other jobs and how many hours they involve. This approach has been adopted in other industries where hours are controlled, such as road haulage.

Consultants who work for more than one trust will have a 'lead' employer responsible for ensuring that working time limits are not exceeded.

Because the NHS is an emanation of the state, it will not be able to do what many private sector employers appear to be considering - taking a risk.

What is working time?

Working time is defined as the period in which a worker is 'working at his employer's disposal and carrying out his activities'. The question is whether this will apply to staff on call, or working for agencies or banks. It could be argued, for example, that even when an employee is not actively carrying out duties, they are at their employer's disposal, particularly when they are sleeping in, or even carrying a pager. At present, it is felt that only time when the employee is actively working will be counted as working time.

Under the deal being concluded between the BMA and the DoH, time spent by consultants on call in the hospital will count towards working time (despite the fact that the guidance from the Department of Trade and Industry states that sleeping in will be excluded from working time). If this is introduced, the requirements of equal pay would mean that it would have to apply to other NHS staff such as nurses.

Maximum weekly working time

Maximum weekly working time has captured most attention, but it is probably the least significant aspect of the directive. No more than an average of 48 hours a week can be worked (over a reference period of 17 weeks).

The average working week is defined as (A+B)/C, where:

A = the total hours worked in a reference period;

B = the total hours of annual, sick or maternity leave, plus any hours over the 48-hour limit;

C = the number of weeks in the reference period.

In practice, very few people are likely to be affected. If duties require 'continuity of service or production', such as those of staff involved in the reception and treatment or care of patients, this period is extended to 26 weeks. The regulations exclude doctors in training: pre-registration house officers, house officers, senior house officers, registrars, senior registrars and specialist registrars. It was felt that making these groups subject to the regulations would extend the period of training too much.

Some would argue that if the regulations are being introduced for health and safety reasons, junior doctors are the first people they should apply to. Their exclusion is under review, and plans to include them will be voted on by the EU's council of ministers in December.

Senior managers, whose time is 'unmeasured', are also exempt from the regulations.

Furthermore, individuals can agree in writing to work in excess of 48 hours a week. But that agreement can be revoked on giving notice. Many employers outside the NHS are already asking employees to sign agreements to work in excess of 48 hours a week, but this tends to be in non-unionised sectors. Because the regulations protect employees who refuse to sign opt-out agreements against detriment or dismissal, unions are likely to take a hard line against employers who try to force employees to sign.

Peter Hawker, chair of the BMA's central consultants and specialists committee, has said the BMA would not hesitate to take legal action against trusts that tried to force consultants to sign an voluntary opt-out agreement.

Rest periods

Staff will be entitled to a minimum daily rest period of 11 consecutive hours in a 24-hour period, and a minimum of 24 hours in a seven-day period, and/or two uninterrupted 24-hour periods (48 hours) in a 14-day period. But the regulations exclude people whose work cannot be interrupted such as nurses, junior doctors, consultants and laboratory staff. Even so, equivalent compensatory rest periods must be provided.

The BMA is concluding an agreement to roster in long weekends or free half-days to compensate if a doctor's 11 hours' rest in every 24 is interrupted.

Where the working day is longer than six hours, a worker will be entitled to an uninterrupted rest break of at least 20 minutes away from the workstation. Again, these provisions do not apply to staff whose activities require 'continuity' and cannot be interrupted, or where there are likely to be unavoidable or unpredictable events. And as with the maximum working week, this does not apply to doctors in training.

While it might appear that because of 'continuity' few NHS staff will be affected, this is not the case. This is because when staff are providing a continuous service, they are required to have 'compensatory rest' or 'appropriate protection' - although what this means is unclear.

Leave entitlement

The provision for leave entitlement under the directive is, according to many authorities, horrendously complicated. Staff with more than three months' service will be entitled to three weeks' paid leave a year, increasing to four weeks after 23 November 1999. Furthermore, because employers have a duty of care, they will have to ensure that people take their leave. It is unclear whether this includes public holidays.

Why are employers concerned?

People who have worked three months will be able to take their accrued holiday entitlement and then leave. Although there is provision for pay to be deducted, there are doubts about how practical this would be.

Agency staff are included, which will increase the cost of employing agency nurses considerably, whether payment is made by the agency or the customer. Some estimate that the cost of leave entitlement for bank and agency nurses is likely to be around£40m per year. Other estimates put the cost as high as£100m. This could have a major impact on the government's waiting list initiative.

Leave cannot be carried over into another year or replaced by pay in lieu, unless staff have exhausted their statutory entitlements within the leave year (except on termination of employment).

Night staff

Under the directive, 'night workers' must not work more than an average of eight hours in each

24-hour period.

Night workers are those who work at least three hours during 'night time' or are deemed a night worker by a relevant agreement. 'Night' is defined as between 11pm and 6am, or any seven-hour period including midnight and 5am. A 'workforce agreement' (which is described below) will be needed, which defines these terms.

Many NHS employers are concerned about these requirements, especially those operating 12-hour shift patterns. But such a shift pattern would appear to comply with the regulations, as shown in the example below:

Night work is defined as: A/(B-C) where:

A = the usual number of hours in a reference period;

B = the number of 24-hour periods in a reference period;

C = the number of 24-hour periods in the reference period comprising or including rest periods.

Take, for example, an employee who works four 12-hour shifts a week in a 17-week period:

A = 4 x 12 x 17 = 816 hours.

There are 119 (17 x 7) days in a 17-week reference period, so B = 119.

And there are 17 24-hour rest periods in a 17- week reference period, so C = 17.

This means the employee works an average of eight hours in each 24-hour period, so 816/(119 - 17) = 8.

While these restrictions do not apply to staff whose work involves 'the need for continuity of service', particularly services relating to 'the reception, treatment, or care provided by hospitals' (or similar institutions), there are other requirements which do apply.

Night staff must still have health assessments. These, according to the guidance, involve at minimum a screening questionnaire, compiled and analysed by a qualified healthcare professional familiar with the issues associated with night work.

Where there are doubts about an individual's fitness, employees must be referred to a qualified healthcare professional. In most cases screening is expected to be carried out by occupational health services. Where an employee is not considered fit for night work, they must be transferred to suitable day work.

Night workers will be entitled to the same facilities as day workers. This means they will be entitled to the same canteen facilities and occupational health services as day workers. But how many trusts have 24-hour canteens and occupational health departments?

Work involving 'special hazards', 'heavy physical' or 'mental strain' has an absolute limit of eight hours in any 24-hour period. This could effectively outlaw 12-hour shifts for nurses and ambulance staff.

Bank and agency nurses

The regulations apply to 'workers'. Many bank nurses are employees, not self-employed and, anyway, the definition of a 'worker' is probably wider than 'employee'.

There appear to be two main problems associated with using bank and agency nurses:

Aggregation of hours;

Entitlement to annual leave.

One view is that if a nurse returns to duty as a bank or agency nurse they will still be regarded as an employee of the trust for the purposes of the regulations.

This means that if the 48-hour rule is to be exceeded, the employer must have the nurse's written consent and note the hours worked.

Because of the increased cost of bank and agency nurses, their use is likely to decrease.

The role of agreements

Agreements between employers and employees are the cornerstone of the directive. This is because it is possible to derogate from some of the provisions by agreement.

Collective agreements between an employer, or employers' association, such as between the NHS Executive or the NHS Confederation and an independent trade union, will be able to tailor the effects of the regulations. But they will not be able to nullify them.

It is possible, for example, to reach an agreement which extends the period for calculating the working week to 52 weeks. This would mean that the 48-hour week would become virtually irrelevant.

Workforce agreements may be drawn up with elected representatives of staff who do not belong to a trade union but who have a common workplace or function.

But exactly how easy it will be to reach agreement on what in most cases will be very contentious issues is hard to say.