The European Working Time Directive was introduced into UK law through the Working Time Regulations 1998. One of its most widely reported provisions is the limit on a worker's average working hours. Most workers are now not allowed to work more than 48 hours a week, unless they explicitly opt out of this regulation.
There are some exceptions to this rule, one of which applies to junior doctors whose average working hours are more than 56 hours a week. From Saturday 1 August 2009, this limit will change so that junior doctors are on the same level as other workers. However, the current swine flu pandemic has raised serious concerns about the impact this will have on the NHS's ability to respond to swine flu.
The restrictions, which will apply to doctors from 1 August 2009, have been met with mixed reactions from medical professionals, but there is growing pressure on the government to postpone upcoming changes until the current pandemic is over.
The UK Health Protection Agency estimates that there are more than 100,000 new cases of swine flu every week in the UK, and doctors' pressure group RemedyUK has highlighted the impact on doctors who are at increased risk of contracting swine flu, and the resulting high morbidity within the NHS itself.
The Royal College of Surgeons also supports the view that the changes, which will come into force this weekend, will place further strain on the NHS, but other groups, such as the Department of Health, argue that in reality most of the extra work is being carried out by GPs and the changes should not be delayed.
If implementation goes ahead, how can the NHS as an employer mitigate the negative impact on its ability to respond?
It is also possible to opt out of the 48-hour maximum working week. Like other workers, doctors can also opt out and then rejoin. This can be done by withdrawing consent at any time with three months' written notice to the employer.
Many employers include language in their employment contracts that makes it easier to opt out. However, if an employer's existing employees have signed contracts that don't include any opt-out, there's nothing preventing the employer from distributing opt-out forms to employees so they can opt out of the rule.
Any exemption from the maximum working week must be a voluntary decision. The NHS cannot therefore force doctors to sign an exemption, and such a procedure is likely to take time due to the large numbers involved. Given that the swine flu pandemic could last for many months, the NHS may ultimately decide that it has no choice but to allocate resources to sending exemption forms to every doctor individually. The aim and hope is that a significant number of doctors will agree that this is necessary, choose an exemption even if only temporarily, and be able to work additional hours and ease the burden of overwork.
Pam Loch and Chloe Pereira of Loch Associates, a niche employment law firm;
