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Thanks to Butterworths.co.uk
Option to opt out of work time law
With concerns about how the NHS will cope with the challenge of finding
�new ways of working� to accommodate cuts in junior doctors� staffing
hours under the Working Time Regulations, there is still one option available
under the Regulation. Richard Lister, employment solicitor with Lewis Silkin
talks to Greg Bousfield...
Highly uncharacteristic for
modern health and safety legislation, the Regulation allows employees to sign an
agreement to opt-out of the restrictions on working time, with a non-detriment
clause in the case of those who don�t want to perform such work.
"There has always been the argument that the law should have been more
prescriptive and actually required actually required employers to limit workers'
hours instead of allowing for an opt-out but I think the provision is going to
have a limited shelf-life," comments Richard Lister, employment solicitor
with Lewis Silkin. "It has to be reviewed by the European Commission and
the Council of Ministers this year and the Commission is certainly making noises
that they would like it to be dropped, or significantly modified, so in the
long-term I don�t think hospitals have any guarantee that they can rely on
it."
On the other hand, it appears other countries have already utilised the
provision. "It was thought that the UK was the only country that availed
itself of the opt-out but other EU countries are now using it, so there may not
be majority support for it to be removed and it may end up being modified in
some form." The Department of Health believes that the current junior
doctors� contract with the NHS would exclude an opt-out.
"An opt out has to be individually agreed in writing by a worker with his
or her employer - this is invariably done by means of a term in the contract of
employment," Lister comments. "If there is a term in the contract that
clearly limits average working hours to the WTR limit then it would be
inconsistent to have another term providing that the worker agrees to opt out of
that limit. I am not sure how a court or tribunal would interpret such a
contract," he says.
" The NHS�s position does suggests that most hospitals/NHS trusts will
not be relying on getting junior doctors to opt out. Rather, they will be
seeking to comply with the relevant limit and reorganise working patterns
through shift-working etc so as to ensure adequate cover."
Indeed, the NHS�s London Modernisation Board says it now regards the
Regulations not as a �medical staffing issue� but as a opportunity �to
look for radical new ways of working to address the challenges. Hospitals will
need to bring about major change in the way services are delivered, particularly
at night.�
In brief, the regulation of junior doctors� hours is via a Horizontal Amending
Directive (HAD 2000/34/EC) which requires application of all the provisions of
the Working Time Regulations from 1 August 2003 but with an extended transition
to the required 48-hour average week ceiling.
This means that although the Regulation requires that from August 1, 2004 all
the time spent by junior doctors on hospital premises will count as working
time, regardless of whether doctors are with patients or asleep but on call, the
average weekly ceiling cannot exceed 58 hours. The shorter week is to be phased
in a series of steps by 1 August 2009. Although DTI is still reporting on its
website that the Government can seek an additional period of up to three years
if their are �particular operational difficulties�, this "was an option
that the Government has not taken up," Lister says.
The Regulations also apply the formula used to calculate average hours worked
differently for doctors, who will use a reference period of 26 weeks, instead of
the 17-week period applicable to other areas of industry. (21/07/03)
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