The SIMAP and Jaeger cases
On 3 October 2000 a judgement was passed at the European Court of Justice
(ECJ) in a case concerning the status of 'on-call' time.* The judgement
related to doctors employed in primary health care teams though a similar
approach may now be taken in other areas. It indicated that 'on-call' time
will be working time when a worker is required to be at their place of work.
When a worker is away from the workplace when 'on-call' and accordingly free
to pursue leisure activities, on-call time is not 'working time' unless the
worker is actually called in to work.
The recent ECJ judgment on 9 September 2003 in the "Jaeger" case
(Landeshauptstadt Kiel v Dr Med Norbert Jaeger, case C-151/02) has confirmed
the SiMAP judgment.
The implication of SIMAP and Jaeger for the NHS is>that time spent resident
on call for clinical purposes will count as "working time" in its entirety,
even if the doctor in training is resting (or even sleeping) for the whole
of the on call period.
This means that resident on call working patterns will not be a sensible use
of doctors' time in most cases. Where the intensity of work merits it,
doctors could work a full shift; where the work is of low intensity, a
non-resident on call arrangement would be preferable.
Employers will also need to go back to first principles and look at whether
the service for patients could be delivered completely differently, for
example by
using non-medical practitioners to provide first on call out of hours cover
collapsing tiers of cover and/or cross-covering between specialties
setting up multidisciplinary night teams
redesigning services across several sites in some cases.
Further examples are contained in HSC 2003/001 "Protecting staff, delivering
services: implementing the European Working Time Directive for doctors in
training".
http://www.doh.gov.uk/workingtime/derogation/
I am afraid you will have to pay for their rest brakes it is clear and
simple in the two above rulings. They are at their workplace and unable to
pursue leisure activities.
Andy Webster
-----Original Message-----
From: Accident and Emergency Academic List
[mailto:[log in to unmask]] On Behalf Of Rowley Cottingham
Sent: 25 January 2004 06:11
To: [log in to unmask]
Subject: Re: SHO hours
The 30 minutes per 4 hours worked comes from page 25 of the Junior doctors'
handbook. So by
combining that with page 40, what you are saying is that they have to have
a rest, and the Trust
has to pay them for it!
Page 40:
Actual work: the definition of hours of actual work will be that
definition used in the New Deal (ie includes all time carrying
out tasks for the employer, including periods of formal
study/teaching, but does not include rest while on-call -
(see page 23). For the purposes of defining work after 7pm,
work begins when a doctor is disturbed from rest and ends when
that rest is resumed. This includes, for example, time spent
waiting to perform a clinical duty* and time spent giving advice
on the telephone.
Rest: All time on duty when not performing or waiting to
perform* a clinical or administrative task, and not undertaking a
formal educational activity; but including time spent sleeping.
> This is a multi-part message in MIME format.
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> The European Working Time Directive allows for a 20 min break whereas =
> the New Deal says 30 mins. I'm not sure about the 1 hr break. Anyway =
> I've already asked the question and they are given paid breaks..... =
> nursing staff as you pointed out are not paid for breaks. This is
> likely =
> to cause some friction in the ranks over the next few years.
>
> Every hour has to be accounted for. So as the SHOs are paid to attend =
> teaching sessions.... if they don't turn up then they are allocated a =
> shift in A&E. They are not paid to attend if on nights. If they have a =
> valid reason for not attending that can be agreed in advance.
>
> Alas Morecambe Bay is a pilot site for this.
>
> Ray McGlone
>
> ----- Original Message -----=20
> From: "Rowley Cottingham" <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Thursday, January 22, 2004 9:08 PM
> Subject: SHO hours
>
>
> > According to the junior doctors' handbook, a junior must have a =
> restbreak of 30 minutes after every
> > 4 hours, and so in an 8 hour shift is entitled to a 30 minute rest =
> break and in a 9 hour shift a 1 hour
> > break.
> >=20
> > Therefore, if a junior is rostered for a 9 hour shift (say 8 to 17) =
> they are paid for and work (so far as
> > the New Deal is concerned) 8 hours. That is, exactly the same =
> rationale as nursing shifts. Correct?
> >=20
> > I ask because currently our juniors are being paid band 2a as the =
> average week is 48-50 hours which
> > will fall to 1a and 43-45hours if we are not paying them for rest =
> periods.
> >=20
> > Best wishes,
> >=20
> >=20
> > Rowley Cottingham
> >=20
> > [log in to unmask]
> > Visit the new and improved http://www.emergencyunit.com
> >
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> <META http-equiv=3DContent-Type content=3D"text/html; =
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> <DIV><FONT face=3DArial size=3D2>The European Working Time Directive =
> allows for a 20=20
> min break whereas the New Deal says 30 mins. I'm not sure about the 1
> hr =
> break.=20
> Anyway I've already asked the question and they are given paid =
> breaks.....=20
> nursing staff as you pointed out are not paid for breaks. This is
> likely =
> to=20
> cause some friction in the ranks over the next few years.</FONT></DIV>
> <DIV><FONT face=3DArial size=3D2></FONT> </DIV>
> <DIV><FONT face=3DArial size=3D2>Every hour has to be accounted for So
> =
> as the SHOs=20
> are <STRONG>paid</STRONG> to attend teaching sessions.... if they don't
> > =
> turn up=20
> then they are allocated a shift in A&E. They are not paid to =
> attend if=20
> on nights. If they have a valid reason for not attending that can =
> be agreed=20
> in advance.</FONT></DIV>
> <DIV><FONT face=3DArial size=3D2></FONT> </DIV>
> <DIV><FONT face=3DArial size=3D2>Alas Morecambe Bay is a pilot site
> for=20
> this.</FONT></DIV>
> <DIV><FONT face=3DArial size=3D2></FONT> </DIV>
> <DIV><FONT face=3DArial size=3D2>Ray McGlone</FONT></DIV>
> <DIV><FONT face=3DArial size=3D2></FONT> </DIV>
> <DIV><FONT face=3DArial size=3D2>----- Original Message ----- </FONT>
> <DIV><FONT face=3DArial size=3D2>From: "Rowley Cottingham"
> <</FONT><A =
>
> href=3D"mailto:[log in to unmask]"><FONT
> face=3DArial=20
> size=3D2>[log in to unmask]</FONT></A><FONT =
> face=3DArial=20
> size=3D2>></FONT></DIV>
> <DIV><FONT face=3DArial size=3D2>To: <</FONT><A=20
> href=3D"mailto:[log in to unmask]"><FONT face=3DArial=20
> size=3D2>[log in to unmask]</FONT></A><FONT face=3DArial=20
> size=3D2>></FONT></DIV>
> <DIV><FONT face=3DArial size=3D2>Sent: Thursday, January 22, 2004
> 9:08=20
> PM</FONT></DIV>
> <DIV><FONT face=3DArial size=3D2>Subject: SHO hours</FONT></DIV></DIV>
> <DIV><FONT face=3DArial><BR><FONT size=3D2></FONT></FONT></DIV><FONT =
> face=3DArial=20
> size=3D2>> According to the junior doctors' handbook, a junior must =
> have a=20
> restbreak of 30 minutes after every<BR>> 4 hours, and so in an 8
> hour =
> shift=20
> is entitled to a 30 minute rest break and in a 9 hour shift a 1 =
> hour<BR>>=20
> break.<BR>> <BR>> Therefore, if a junior is rostered for a 9 hour
> =
> shift=20
> (say 8 to 17) they are paid for and work (so far as<BR>> the New
> Deal =
> is=20
> concerned) 8 hours. That is, exactly the same rationale as nursing =
> shifts.=20
> Correct?<BR>> <BR>> I ask because currently our juniors are being
> =
> paid=20
> band 2a as the average week is 48-50 hours which<BR>> will fall to
> 1a =
> and=20
> 43-45hours if we are not paying them for rest periods.<BR>> <BR>>
> =
> Best=20
> wishes,<BR>> <BR>> <BR>> Rowley Cottingham<BR>> <BR>> =
> </FONT><A=20
> href=3D"mailto:[log in to unmask]"><FONT face=3DArial=20
> size=3D2>[log in to unmask]</FONT></A><BR><FONT face=3DArial
> size=3D2>> =
> Visit the new=20
> and improved </FONT><A href=3D"http://www.emergencyunit.com"><FONT =
> face=3DArial=20
> size=3D2>http://www.emergencyunit.com</FONT></A><BR><FONT face=3DArial =
> size=3D2>>=20
> </FONT></BODY></HTML>
>
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Best wishes,
Rowley Cottingham
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