Who's afraid of the Working Time Directive? - Part 2: NHS

Yesterday I ran through the contents of the Working Time Directive (WTD) and the UK Regulations that implement the law in Britain. With a minimum break of 20 minutes for those who work for 6 hours or longer, and an opt-out-able prohibition on a working week longer than 48 hours (when averaged out over 17 weeks), the rules seem reasonable. In fact, you rarely hear anyone argue against the substance of the Directive in connection with everyday workers. However, the WTD is increasingly linked with the NHS in political debate.

Since the rules apply to doctors, consultants and nurses, concerns have been raised over whether the WTD was impacting on patient care in the National Health Service, with changing doctors breaking the continuity of care and leading to mistakes. Two ECJ rulings – Sindicato de Médicos de Asistencia Pública, which held that “on call” time counted as working time whether or not it was spent at the hospital, and Norbert Jaeger (PDF), which defined when compensatory rest should be taken – are key to this debate. It should be noted that health service workers can opt out of the 48 hour week in their contracts too.

The Royal College of Surgeons is one group of medical professionals against the current rules:

“These on-call arrangements have been scrapped in favour of full-shift rotas. The nature of working a full shift pattern is more tiring when compared to an ‘on-call’ system because of doctors working irregular shift patterns which create a working environment that is impairing patient safety by reducing the number of doctors covering patients and increasing the number of patient handovers between staff, correspondingly reducing continuity of care.

[...]

We believe that proposals to classify on-call time differently and the requirements on the timing of compensatory rest will provide a framework to start to address these concerns for surgeons, but we would also encourage the Commission to look in detail at the sectoral problems for doctors in training with a view to allowing a solution of excluding this group of doctors from the scope of the Directive.”

However, the British Medical Association is in favour of the WTD:

"'The BMA opposes further attempts to renegotiate the [EWTD] or to overturn rulings by the ECJ (European Court of Justice).

'Previous attempts to change legislation have taken many years and securing significant improvements to junior doctor training within the parameters of the EWTD must remain the priority,' the association says.

The BMA also stresses that it strongly supports the ECJ rulings that all time on-call, including inactive time, is considered work."

And the BMA’s Juinor Doctors’ Committee chair, Ben Molyneux has said:

"Tired doctors make mistakes, and we must think of the welfare of doctors and the resultant impact fatigue can have on patient care.

'There is a mounting body of evidence to support the move to reduced working hours in terms of patient safety. While flexibility may be appropriate, scrapping the [EWTD] is not.'"

The Royal College of Nurses supports the rules, pointing out the level of skill and preparedness that needs to be maintained for on-call hours, and call for the definition of on-call time to be included in legislation and for the end of the opt-out (PDF):

“The RCN has called for a phasing out of the opt out on health and safety grounds. There is evidence to support the impact of long working hours on safety and the health and wellbeing of nursing staff. A recent study of the health and wellbeing of 11, 000 health care staff in England found a link between long working hours and increased absenteeism. It also found higher rates of presenteeism (with staff attending work when they didn’t feel well enough to be there). Sleep deprivation was identified as a risk factor for wellbeing.

[...]

The same survey [the RCN’s working well survey] found that 58% of nurses working on call or standby did not receive any compensatory rest. The nature of on call work, particularly in the health sector, often means carrying out safety critical procedures in a relatively unsupervised environment. For this reason, it is essential that compensatory rest is timely and adequate. As mentioned earlier there is a real need for clarity from the Commission around the issue of on call and compensatory rest.”

In this debate there seems to be three different, but related, issues: the protection of workers through regulating working time, protecting patients and care continuity, and the number of healthcare staff. As Molyneux remarked, tired doctors make mistakes, so it’s not self-evident that scrapping WTD rules for healthcare workers – effectively saying that they deserve less rights than other employees – would be to the benefit of healthcare workers or patients. Again, when scrapping the WTD is suggested, there is little to no reference to any policy decision – what this means for the mix of healthcare workers’ rights, patient care, and the shape of the healthcare workforce – so seemingly working doctors and nurses longer is the simple answer to these issues.

Notably, the quotes above are taken from the Commission’s consultation with the industry over how to reform the WTD, and from reaction to debates in the UK Parliament.Currently there are on-going talks between the social partners (employers and employees) in this area, and the Commission is likely to try to introduce reforms for the Council and Parliament to consider if the talks fail. So this isn't necessarily a static area of policy, and it shows that there can be continued policy debates in the EU on existing laws.


Conclusion:

So where does that leave us on the WTD and social and employment matters being a part of the single market? Essentially there are two separate issues when it comes to the WTD and legislation like it: (1) is it a topic for valid debate and legislation at a European level? and (2) is the Directive itself any good?

Since the single market covers an economy of around 500 million people, who are employers, employees, and consumers, how the market is run and regulated affects everyone. The single market isn't some sort of alternate dimension that delivers food and drink from France and Italy to supermarket shelves, but an economy that people work and live in, so social and environmental standards are naturally an issue for consideration. The need for minimum European standards in these areas is a valid topic, and, especially as Member States and citizens want to protect their welfare states, actually important to the legitimacy of the single market that it can recognise these issues.

And the WTD? It's clear from these 2 posts that I'm personally in favour of it, but it's more important that the debate when it comes to this kind of legislation has more substance. If a political party thinks that these minimum standards should be scrapped, then that's a pretty radical proposal and deserves a full debate on the alternatives.

Who is afraid of the Working Time Directive? - Part 1

When it comes to renegotiating the UK’s place in the EU and what Cameron wants to be repatriated in terms of powers, there’s very little to go on. So far Cameron’s statements have been about changes for the whole of the EU if possible, but specific opt-outs for the UK if not – though he has no shopping list of powers, and there are only references to "flexibility" to go by. As the UK will probably choose to opt out of the Justice and Home Affairs area of the EU (and "re-opt-in" to a few of the measures in this area), the Working Time Directive seems to be the most prominent piece of legislation that upsets the Tories, so it might be worth taking a closer look at it.

The Working Time Directive is aimed at regulating the rest periods that workers get in order to ensure health and safety at work (Article 1), and covers daily and weekly rest, annual leave and night shift organisation – you can read an overview of the Directive on Wikipedia here.  In the UK the Directive is implemented via the Working Time Regulations (SI 1998/1833). Note that there are separate rules for workers in the transport sector.

The minimum rules the Directive provides include:

- That workers are entitled to a minimum daily rest of 11 hours per 24 hour period (Article 3) – this means that there’s 11 hours where the worker is not at work, including when the worker’s asleep;

- That workers are entitled to a break where the working day is longer than 6 hours (the period is left to collective agreements or national legislation) – Article 4);

- That workers are entitled to a day off for every 7 day period, though there is a derogation to a minimum rest period of 24 hours if there are technical or work organisation conditions that require it (Article 5). The weekly day off is averaged over a fortnight (Article 16(a));

- That workers work no more than an average of 48 hours per week (Article 6) – there is an opt-out, so that employees can sign a contract opting out of the 48 hour limit (Article 22). This is averaged over 4 months or less, depending on the Member State (Article 16(b));

- That workers are entitled to paid annual leave of at least 4 weeks;

- Night workers are treated separately under the Directive, and are entitled to health assessments and 8 hour work days (Articles 8-12);

- Member States can have higher standards if they choose (Article 15), and Article 17 permits derogations for workers in certain sectors.

The UK Working Time Regulations that are based on this Directive provide for the UK that:

- There is a maximum average weekly working time of 48 hours (Regulation 4) – this can be opted out of under an employment contract (Regulation 5). The average is taken by looking at the last 17 weeks of employment;

- Workers will get the 11 hour daily rest and the weekly day off as set out in the Directive (Regulations 10 & 11), with some flexibility over how they’re used;

- Where the daily working time is more than 6 hours, they are entitled to a minimum of a 20 minute break (30 minutes for 15-18 year olds working over 4.5 hours) – Regulation 12;

- Workers are entitled to 28 days paid holiday annually (Regulation 13).

So the UK Regulations stick strictly to the maximum working time permitted by the Directive per week, and employees are able to opt out of the 48 hour average limit (though they should not suffer detriment for not opting out – Regulation 31). On annual leave, the UK Regulations are more generous, providing for 5.6 weeks holiday per year (though obviously you’ve fewer holidays if you haven’t or won’t have worked a full year). For exceptions to the rules and opting out of the 48 hour working week, see the Government’s website here.

Interestingly, if you work more than 6 hours per day, you’re only entitled to a minimum of 20 minutes break under UK law – a bit less than the traditional lunch hour!

As the law currently stands, the UK Regulations mostly stick closely to the Working Time Directive and do little to build on them. Are they really that much of a burden? How much would business really gain from reducing workers' rest breaks (since the headline 48 hour week can be opted out of anyway)? As Narmanda Thiranagama pointed out in her analysis of UKIP's current economic policy (which currently includes scrapping laws such as the WTD), SMEs have put such regulation last on their list of obstacles to growth:

"In 2012, the SME Barometer found that SMEs thought that the biggest obstacle to growth was the economy. Of the 667 directors and owners they interviewsed, 32% believed that the economy was the biggest obstacle, followed by 13% who blamed taxation. "Regulations" languishes at the bottom of the table along with "competition" at 7%."

When it comes to the UK's economic problems and the reality of regulation, it doesn't seem as if there's much that getting rid of this Directive will actually do for the British economy. And are the Tories campaigning with the message that British people don't work long enough hours? Even if they were, there is a debate to be had over longer hours versus productivity within those hours. While I hesitate to simply call a stance ideological - after all political parties are supposed to give us options from ideological viewpoints - it's hard to see where the practical impetus for policy change is coming from here, except that the WTD has become symbolic of EU regulation in the UK.

If you want to have a single market, then there will have to be some minimum social standards: EU Member States all have their own version of the welfare state, and their own idea of a work-life balance. Without some minimum standards, we would be constantly told that we our being out-competed by our neighbours and therefore have to give up the national standards and protections that people have fought for. How long would a single market survive if people were constantly told that it was the reason why they had to give up their working rights? A single market is deeper than free trade and a political project in itself; and if you want countries with welfare states to buy into it, then you will frankly have to expect common minimum social standards unless the political direction of the community changes.

The Tories in their European Conservatives and Reformists can campaign for more liberalisation and deregulation, either alone or with the Euorpean People's Party and others, but if it doesn't, then it shouldn't use renegotiation as a Trojan horse for its own ill-thought out ideological ends.