There are some exceptions to the Regulations and one of those applies to junior doctors whose maximum average working time has been 56 hours per week. From Saturday 1 August 2009 this limit will change to bring junior doctors into line with other workers. However, the current swine flu pandemic has led to serious concerns being raised about the impact this will have on the NHS's ability to cope with swine flu.
The various arguments within the medical profession for and against the Regulations applying to doctors from 1 August 2009 are numerous. Increasing pressure is being put on the Government though to delay the upcoming changes until the current pandemic is under control.
The Health Protection Agency estimates that there are over 100,000 new cases of swine flu in the UK each week. Doctors' pressure group RemedyUK has been highlighting the impact on doctors who face an increased risk of contracting swine flu due to their exposure to it and the resulting levels of sickness within the NHS itself.
The Royal College of Surgeons is also supporting the view that the changes being made this weekend will put further strains on the NHS. However, others such as the Department of Health argue that in fact most of the extra work is being carried out by GPs and the changes should not be delayed.
If the implementation does go ahead, how can the NHS as an employer mitigate any negative impact on its ability to cope?
It is possible to opt out of the 48-hour maximum working week. Like any worker, once a doctor opts out he or she can also opt back in. This can be done by withdrawing their consent at any point by giving three months' written notice of this decision to their employer.
Many employers include wording to facilitate opting out in their employment contracts. But, if an employer has existing workers who signed contracts without any opt-out included, there is nothing to prevent the employer circulating an opt-out form to their workers to enable them to opt out of the Regulations.
Any decision to opt out of the maximum working week has to be a voluntary decision. Therefore the NHS could not force doctors to sign opt-outs. It could also take some time to carry out such an exercise as a result of the numbers involved. Given that the swine flu pandemic could be with us for many months, the NHS may ultimately decide it has no alternative but to devote resources to sending out opt-out forms to all doctors on an individual basis. By doing so the aim and hope would be that significant numbers agree that this is necessary and elect to opt out even on a temporary basis, to increase their hours and help ease the burden on a stretched workforce.
Pam Loch and Chloe Pereira of niche employment law firm, Loch Associates.
Doctors can be an exception to the Working Time rules
The European Working Time Directive was implemented into UK legislation under the Working Time Regulations 1998. One of the most highly publicised provisions is the limit on a worker's average working time. At the moment most workers are not permitted to exceed 48 hours work per week unless they specifically opt out of the Regulations.
