Working hours target deadline fast approaching

The NHS has had more than a decade to prepare for the European working time directive. But, with only four months to go, many trusts still have a lot of work to do to ensure they are compliant for doctors in training.

Penalties for trusts for non-compliance include possible employment tribunal proceedings by employees, orders for compliance (for example from the Health and Safety Executive in respect of night worker health assessments) and fines.

“In April 2008 53.4% of junior doctors were estimated to be compliant”

The European Commission may begin enforcement proceedings if the UK does not adequately implement the directive, which sets out minimum requirements for working hours, rest periods, annual leave and working arrangements for night workers. Central to it is a working week of no more than an average of 48 hours over 26 weeks.

It was enacted into UK law in October 1998, but the government negotiated an extension on working hours for doctors in training. They have worked a maximum of 56 hours per week since August 2007, under their pay agreement, but from August 2009 must work no more than an average of 48 hours each week.

Will trusts meet this deadline? Official figures, based on six-monthly New Deal returns, suggest that only 53.4 per cent of junior doctors were working a 48-hour week this time last year (see graphs). In more recent surveys by the Royal College of Physicians, 41 per cent of consultants, 50 per cent of registrars and 66 per cent of tutors thought trusts complied.

The UK government has recognised some trusts may not meet the deadline for all services and so it has informed the EU that it intends to take up the option of a derogation. This permits an average working week of 52 hours for trainee doctors for a set period of up to three years in specific named services. Services requiring 24-hour immediate patient care (for example, maternity, paediatrics and some surgery), supra specialist services and remote or rural units are most likely to require derogation. Difficulties securing extra doctors due to workforce constraints or the requirement to work across split sites beyond August might be valid reasons.

Red light means danger

The Department of Health wrote to SHAs last December asking them to list the services they thought required derogation. Only six responded with requests, listing 26 services in 13 trusts.

NHS Employers head of programmes David Grantham admits: “It doesn’t sound very many; that is why we are going back to the SHAs and asking: how rigorous have you been?”

SHAs are being asked to stress-test service plans and grade them using a traffic light system: green for already 48-hours compliant; amber for compliant with a bit of work; and red for a high risk of non-compliance. SHA stress-testing will assess plans by considering whether doctors might not be available and the contingences in place if they cannot be found, such as international recruitment or use of other staff.

Trusts with services graded red will be expected to discuss their position with the SHA.

“It might be [that] within an organisation you haven’t got a solution but between organisations you might have one,” Mr Grantham suggests.

If the EU allows derogation, the working time regulations will be amended to list trusts and services to be derogated and for how long Ω subject to UK parliamentary approval.

Monitoring of the New Deal arrangements will continue, but with no additional monitoring for compliance with the working time directive. If trainee doctors believe they are working excessive hours, they can complain and the employer will have to take action, including monitoring and reduced hours if the problem is confirmed. ●

The Workforce Projects Team - part of Skills for Health - has produced a range of support tools designed to help trusts, which are available on its website, and NHS Employers has published a framework for managing medical vacancies. For best practice case studies and practical advice from the team, turn to our special report, starting on page 25.