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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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