NHS HDL (2003) 3 abcdefghijklm Health Department Human Resources Directorate Dear Colleague WORKING TIME REGULATIONS All employers must comply with the requirements of the Working Time Regulations. NHS employers need to ensure that the implications, of these regulations are fully understood and action taken to ensure compliance with their legal responsibilities. The Working Time Regulations are the expression of the European Working Time Directive in UK law and employers must ensure that their organisations are complying with them. Ministers regard these regulations as central to securing safe and fair working conditions for employees, and, thereby, to ensuring that the quality of care delivered in NHSScotland is maintained to the high standards expected by the public. Earlier guidance has already been issued on the Working Time Regulations as follows: MEL (1999)1 Working Time Regulations Implementation in the NHS in Scotland; PCS (DD) 1999/1 Working Time Directive Agreement for career grade doctors; and PCS (GC) 99/1 which reflects the General Whitley Council agreement on implementing the Working Time Regulations for non medical staff. 7 th February 2003 Addresses: For action Chief Executives, NHS Trusts Chief Executives, NHS Boards Chief Executives, Special Health Boards Chief Executive, Common Services Agency Employee Directors Enquiries to: Bill Ellis Workforce Unit St Andrew s House EDINBURGH EH1 3DG Tel: 0131-244 1846 Fax: 0131-244 2837 It is clear that further efforts need to be made to ensure full compliance throughout NHSScotland. A sub-committee of the Scottish Partnership Forum was therefore established to draw up explanatory material relating to the regulations and a framework of assessment which NHSScotland organisations could use in achieving compliance. The SPF have now endorsed the sub-committee s report, including a Framework of Assessment, which is now attached. This HDL draws employers attention to the explanatory sections of the report, to the Framework of Assessment, and to the proposed actions, which are intended for use in abcde abc a
NHS HDL (2003) 3 NHSScotland organisations to help staff and managers address compliance issues more effectively at local level. In due course, compliance with the regulations will be monitored through the Performance Assessment Framework and the Staff Governance Standard. This document is designed to help NHS Boards plan for, monitor and assess compliance with the regulations but it obviously cannot be regarded as a complete or authoritative statement of law; determining the law is a matter for the tribunals and the courts. For more specific advice on how the regulations apply in particular cases, it is recommended that employers and staff seek legal advice. Yours sincerely MARK BUTLER Director, Human Resources Directorate Co- Chair,. Scottish Partnership Forum MICHAEL FULLER Scottish NHS Lead Officer Co-Chair, Scottish Partnership Forum abcde abc a
Working Time Sub-Committee of the Scottish Partnership Forum Final Report October 2002
Acknowledgements The Joint Chairs would like to extend their thanks to the following individuals and organisations: Annie Ingram, without whose knowledge and enthusiasm this report would not have been written. Tayside University Hospitals University Hospitals NHS Trust for acting as the test site for the case study methodology and releasing Annie Ingram to support the Group. Argyll & Clyde Acute Hospitals NHS Trust, Lothian Primary Care NHS Trust and Scottish Ambulance Service for participating in the case study. NHS Lothian for allowing the Group to use the night worker risk assessment document; CSBS for allowing use of the CSBS methodology. Murdo Macleod, Central Legal Office for advice and guidance. Scottish Executive Health Department for facilitating the process. Finally the Joint Chairs would like to thank all members of the Group for their hard work, enthusiasm and passion throughout the process which enabled us to produce this report, which we believe to include a workable framework.
1. Remit The Sub-committee was established in December 2001/January 2002 under the joint directorship of Elizabeth Stow, Society of Radiographers and Alan Boyter, Director of HR, North Glasgow University Hospital NHS Trust. The initial terms of reference of the Sub-committee were as follows: To carry out a scoping exercise jointly by management and staff side on the impact of all aspects of the Working Time Regulations as they apply to NHSScotland in order to identify the main issues which need to be addressed and their financial implications for the Service; To produce a report for the Scottish Partnership Forum (SPF) setting out the issues identified from the scoping exercise; Based on the results of the scoping exercise, prepare joint guidance (including best practice advice) for NHSScotland to ensure compliance with the Working Time Regulations. At the Groups first meeting on 18 January 2002 a presentation was made by Annie Ingram, Clinical Group Manager, Tayside University Hospitals, on a study that she had completed as part of her PhD research into compliance with the Working Time Regulations across NHSScotland. It was proposed that it a more in-depth analysis be undertaken in a limited number of sites with a view to developing a framework for compliance across the Service. This was agreed and the terms of reference were subsequently altered to reflect this change. Mrs Ingram also agreed to share the baseline study, which scoped the size of the problem across NHSScotland, with the SPF. This report summarises the work of the Working Time sub-committee of the Scottish Partnership Forum and commends to the full Committee the recommendations of the Report.
2. Membership of the Sub-committee Membership of the Sub-committee included trades union representatives, HR Directors and staff from the Health Department of the Scottish Executive. Annie Ingram was also invited to be a member of the group. The full membership of the group is as follows: Alan Boyter, Director of HR, North Glasgow University Hospitals } Joint Chairs Elizabeth Stow, Society of Radiographers (SOR) } Janis Brown, Lothian University Hospitals Willie Duffy, Unison Eddie Egan, Unison Annie Ingram, Clinical Group Manager, Tayside University Hospitals Ruth Kelly, HR Director, Lothian Primary Care Gillian Lenaghan, Royal College of Midwives (RCM) Dorothy McKinney, Scottish Ambulance Service (SAS) Mike Palmer, Assistant Director of HR, Scottish Executive Health Department (SEHD) David Renshaw, Director of HR, Argyll and Clyde Acute Hospital David Robertson, Payroll Manager, NHS Greater Glasgow Stuart Robinson, SEHD David Robb, SEHD Jim Wallace, Royal College of Nursing (RCN).
3. Background The Working Time Regulations 1998 (S.I. No. 1833), as amended 1 implement EC Directive 93/104/EC concerning the organisation of working time, into UK law. The Working Time Directive was implemented under Article 118a of the Treaty of Rome, 1957, which allows measures designed to protect safety and health of workers to be introduced. The Regulations introduce a number of entitlements for the majority of workers, not only those on substantive contracts of employment, but also casual staff, like Bank staff. Some workers however are presently excluded from the Regulations. This is a particular issue for the NHS in relation to junior doctors. The entitlements for the majority of workers are summarised in Table 1: Table 1 Summary of Working Time Rights & Protections A limit of an average of 48 hours per week which a worker can be required to work; A limit of an average of 8 hours work in 24 hours which night workers can be required to work; A limit of an absolute 8 hours where the work has been risk assessed to identify special hazards; A right for night workers to receive free health assessments; A right to 11 hours rest per day; A right to a day off every week; A right to a rest break if the working day is longer than 6 hours; A right to 4 weeks paid leave per annum. These rights and protections are however limited by a range of complex exclusions including the activities which a worker undertakes, whether their working time is unmeasured or predetermined, either wholly or partially, the shift work system within a workplace or if agreed through collective or workforce agreement. Individuals can also agree to exclude the maximum weekly working time. (see Section 6 below). NHS Scotland was surveyed during 2000/1 using a postal questionnaire developed to determine how the Regulations had been implemented across the NHS in Scotland. The survey concluded that the understanding of the Regulations was poor, both corporately and by individual employers; there was little appreciation of the health and safety nature of these Regulations; there was a lack of commonality of what was agreed between NHS employers and staff side; and the issue of compliance was low on the priority list for most NHS employers. 2 The in-depth approach commissioned by the Sub-committee utilised a case study approach into three NHS employers designed to: identify areas of non-compliance at a local level; develop a framework/methodology which could be used within the wider organisation of NHS Scotland; and identify issues of strategic importance, which might require resolution on a national basis.
4. Methodology The previous study had considered the implementation of the Regulations at NHS employer level, however this study recognised that the only way to determine compliance was to look at individual organisations and individual staff groups within these organisations. A case study approach was therefore adopted and a number of Trusts volunteered to assist with this approach. From the volunteers, three NHS organisations, one acute, one primary care and the Scottish Ambulance Service, were identified for inclusion case study. A framework was developed for the study using a number of different approaches to data collection within each organisation. Structured interviews with Executive Directors and Clinical Directors, or equivalent; Separate Focus group interviews with Senior Managers/Heads of Departments and local partnership forum; Postal questionnaire to every department regarding shift and call pattern; Study of appropriate records to identify staff working more than 48 hours per week; staff with multiple contracts; and average call hours per department; and Study of any agreements in existence within the individual organisation regarding working time. In addition to the individual case studies, two further exercises were undertaken at the NHS Scotland HR Conference in April 2002, the delegates at which included Chief Executives, HR Directors and HR staff, other senior managers and Trades union representatives at local and national level. Two focus groups were arranged at the conference which 64 delegates, 20% of those attending the conference and an attitudinal survey, using closed questions developed using a Likert scale methodology was included in all delegate packs. The conference delegates represented a wider audience than it was possible to reach during the case study exercise but provided a valuable method of confirming that the case study result did have a wider application within NHS Scotland.
5. Evidence Argyll and Clyde Acute Trust, based over four locations and including a remote site and Lothian Primary Care Trust, also based over a variety of sites and participating in a pilot project for salaried General Practitioners were identified as the two hospital based Trusts to be included. The Scottish Ambulance Service were identified as the third participant and submitted a written report. The full Case Study Report is attached at Appendix One for information however the main points are summarised below. The study determined a number of consistent themes across the case study sites. These are grouped into four general areas. There was a correlation between these themes and the original survey undertaken in 2000/1 and this gave the Group confidence of the wider applicability of the issues raised. Organisational Issues There is a long hours culture within NHSScotland which will exacerbate rather than encourage compliance. Working Time compliance is identified as a clinical, corporate and staff governance issue. Understanding of the Regulations is often superficial across those organisations surveyed with a real need for clear guidance being identified. In general ownership of compliance lies with HR rather than the wider organisation and this needs to change. There is evidence of some Trusts having Policies for the implementation of working time issues but little evidence of these being implemented. There is a need to develop model policies for implementation across NHSScotland. Role reviews will be necessary to ensure medical staff compliance and this will impact on other professions. Despite the need to include Junior Doctors by 2004 no planning has taken place and the potential impacts have not been thought through. Early public engagement in the need for compliance and the impact this will have was identified as essential. Service configuration, within urban and remote and rural areas, will require to change if a compliant workforce is to be achieved. NHSScotland must balance quality (compliance), with the quantity (quantum of activity) and the financial and other resources. Record Keeping Only the Ambulance Service can demonstrate compliance against the provisions for weekly working time. Many staff may be compliant but individual NHS organisations do not have the record keeping systems to demonstrate this.
A system of record keeping to support NHSScotland demonstrate compliance is needed. There is little evidence of opt-outs waivers being in place. Compliance The majority of consultant and career grade medical staff, salaried general practitioners, junior doctors, senior managers, radiographers, laboratory staff and some nursing and ancillary staff are reported as routinely working in excess of an average of 48 hours each week. Compliance can only be achieved through an increase in staff numbers and/or redesign of services. No understanding of the available exclusions within the Regulations is evident. There are no identified special hazards and no system of risk assessment to identify these. The concept of compensatory rest urgently requires to be defined. Risk management issues surrounding working time compliance need to be addressed. Night Workers Managers are not clear who their night workers are despite this having been identified in the local policies. There is evidence of policies in respect of health assessments for night workers but implementation was incomplete. There was no evident ownership by line management of the requirement to identify night workers and to refer these workers for specific health assessment.
6. Framework of Assessment Vision is seeing what life could be like while dealing with life as it is (anon) Throughout the study it has become apparent that NHSScotland needs some help to resolve many of the issues which compliance with the Regulations require. The case studies have confirmed that whilst working time compliance can, and in some aspects must, be directed on an NHSScotland basis, achievement of compliance can only be achieved locally. The complexity of the Regulations and the lack of guidance suggested the need to develop a tool to assist NHS employers to identify areas for further action at a local level. The Clinical Standards Board for Scotland (CSBS) has developed a framework for both clinical and non-clinical standards, used to measure the performance of NHS Scotland, which are the mechanism by which the public can be sure that NHS Scotland healthcare organisations have a strong and cohesive set of management systems in place that cover all aspects of clinical performance. (CSBS, 2002, p3) CSBS standards are developed by those working in the NHS, using a framework template that identifies what the standard should be, why that standard should be at that level and what evidence would be required to demonstrate compliance. NHS organisations are then reviewed against the standard by a team of external reviewers, following an internal selfassessment, using the same tool. The external review will identify priorities for action, against the standard, for the service reviewed. CSBS standards are only one set of standards which the NHS uses to review performance. NHS organisations also have a number of governance standards to address. Corporate governance standards within the NHS are statutory business standards, which any organisation or business must adhere to. Clinical Governance standards are also a statutory requirement within the NHS, linked to the CSBS standards, these standards concern the quality of clinical care delivered and the minimisation of risk. Staff governance is a system of corporate accountability for the fair and effective management of all staff but is not a statutory responsibility at this stage. Many of these standards based systems rely on self-assessment to determine compliance. Throughout the case studies a number of participants in the structured interviews and in the focus groups identified that compliance with the Working Time Regulations was a matter of governance. Clinical governance because it can affect the quality and safety of care. Corporate governance because NHS organisations need to take working time compliance into account when allocating resources and during the study were perceived to be ignoring their statutory responsibilities in respect of working time. Staff governance because staff have a right to be provided with an improved and safe working environment. The Regulations are complex and ambiguous and many participants within the research and at the HR conference identified the need for guidance. The Staff Governance Standard requires NHSScotland to treat its employees fair and consistently and the Group concluded that using a similar approach to that used in the CSBS standards, would be appropriate. Using the template of standards statement, rationale and criteria a similar framework has been developed for working time compliance. The use of the format has been welcomed by Lord Patel, Chairman of CSBS, as commending consistency across the Service. Nine standards were identified by the Sub-committee for use across NHSScotland. These emanate from the Regulations. It is intended that compliance against the standards should be assessed by Local Partnership Forums. Chief Executives and those responsible for the allocation of resources must take account of this assessment in corporate decision making.
Where non-compliance against the standard is identified it is expected that joint action plans will be prepared and agreed and reported through the Accountability Review process. It is recognised that there may be other standards in other areas, which provide a higher level of protection than suggested by the standards contained within this framework. It is not the intention that where higher levels of protection are afforded that these should be superseded. An example of higher level of protection are those applying to pregnant workers or breast feeding mothers. It is also not the intention to differentiate levels of entitlement between categories of staff within NHSScotland however it is recognised that the arrangements for some staff may afford a level of protection beyond the minimum standards laid down in this Framework. Junior doctors are currently excluded from the purview of the Regulations, however from 2004 this will begin to change and the Group considers that it is a matter of good practice to work towards the early inclusion of this group of staff. The enclosed framework is commended to the SPF and it is hoped that the SPF will agree to commend the Framework to NHS employers and their local partnership forums. Relevant definitions and a model risk assessment tool for night workers, which are intended to accompany the Framework, are enclosed at Appendices 2 and 3.
The Framework of Assessment for Working Time Compliance 1. Record Keeping & Monitoring Standard Statement All NHS Scotland employers will hold documentary evidence to confirm compliance with the Working Time Regulations. Rationale Regulation 9 requires that employers keep adequate records to show whether the limits specified in respect of maximum weekly working time; night work, including areas defined as special hazards and risk assessments of special hazards ; and health assessments are being complied with. Criteria 1. Records identify staff who work an average of 48 hours or more, each week, with an NHS employer. 2. Records identify staff who hold one or more substantive contract with one employer, in circumstances where the conditioned hours or hours worked are equal to or greater than an average of 48 hours each week. 3. Records identify the number of call hours worked per employee each week. 4. Records identify staff who have signed opt-out waivers. 5. Records identify night workers. 6. Records identify areas of special hazard identified by the employer or accredited health and safety representative and the control measures in place. 7. Where special hazards are identified records identify the hours worked by night workers each shift. 8. Risk assessments of special hazards are documented and regularly reviewed. 9. Records identify the proportion of night workers who have been offered health screening through classification as a night worker. This information should be held by Occupational Health Departments and anonymised for reporting purposes. 10. Records should identify the date of the next scheduled review of health status. 11. Evidence of regular monitoring of hours worked should be available. 12. NHS Boards should regularly consider working Hours reports. These should include: Staff working in excess of an average of 48 hours each week who have opt-out waivers and reasons for this. Staff working in excess of an average of 48 hours each week who do not have optout waivers and reasons for this. Staff with more than one substantive contract where the hours worked are in excess of 48 hours and reasons for this. Areas identified as special hazards, where staff work more than 8 hours over-night, including reasons. Proportion of designated night workers who have undergone a health assessment. Derogation NHS employers must keep records which are adequate to show whether the limits specified are being complied with. No derogation is permitted to this, except for workers in the armed forces.
2. Maximum Weekly Working Time Standard Statement NHS Scotland staff will not work more than an average of 48 hours each week. Rationale The Working Time Regulations seek to protect the health and safety of workers through limitation of the average hours any worker can work in any week. The NHS is in a unique position where the risk to health and safety has the potential to affect not only those who work within the NHS but also the patients being cared for within the NHS and in circumstances where those patients can be at their most vulnerable. Limiting the hours of work of staff will reduce risks to both patients and staff. Criteria 1. Staff shifts are organised so that no member of staff works more than an average of 48 hours each week. 2. All staff who regularly work more than an average of 48 hours each week have formally opted out of the Regulations for the maximum weekly working time. 3. All staff who work more than an average of 48 hours each will have their actual hours of work monitored and reviewed. 4. Onerous on-call patterns are replaced by other models. E.g. shift working, service redesign. 5. Work is organised flexibly to support service delivery. Derogation 1. It is possible for an individual worker to exclude the maximum average weekly working time through an opt-out agreement. 2. Workers with either wholly or partially measured working time are excluded from the regulations for maximum weekly working time.
3. Rest Standard Statement NHS Scotland staff will achieve 11 consecutive hours of rest between periods at work and a minimum of 24 hours uninterrupted rest in every seven days. Rationale Healthy staff are of primary importance to the employer and it is recognised that adequately rested staff are an important element in assuring service quality and safety. Tired staff are more likely to make mistakes which will adversely impact on both the quality of care provided and their own safety. Criteria 1. Staff shifts are organised, where possible, to allow 11 consecutive hours rest between shifts. 2. Staff shifts are organised, where possible, to allow 24 uninterrupted hours rest in every seven days. 3. Where the standard is varied or not achieved, compensatory rest is a requirement. Derogation 1. Daily and weekly rest may be excluded in circumstances where there is a need for continuity of service, including activities in relation to the reception, treatment or care of patients provided by hospitals or similar establishments. 2. Daily and weekly rest may also be excluded in circumstances where there is an emergency, or due to unforeseen or unusual circumstances. 3. Daily and weekly rest may be modified where the organisation of the shift pattern is such that the full period of rest cannot be taken. 4. Daily and weekly rest may be modified by a collective agreement. 5. Daily and weekly rest may be excluded in circumstances where the worker has unmeasured working time. 6. All such derogations require compensatory rest to be provided.
4. Rest Breaks Standard Statement All NHS staff have at least an uninterrupted 20-minute in-shift break during shifts of 6 hours or more, preferably away from their workstation. Rationale Healthy staff are of primary importance to the employer and it is recognised that adequately rested staff are an important element in assuring service quality and safety. Tired staff are more likely to make mistakes which will adversely impact on both the quality of care provided and their own safety. Staff will perform better if they have an in-shift break. Criteria 1. Staffing levels are adequate to ensure rest breaks. 2. Where it is not possible to achieve the break away from the workstation, staff have hygienic facilities within the workplace to store, prepare and/or consume food and drinks. 3. Where the standard is varied or not achieved compensatory rest is a requirement. 4. Where it is not possible to take a break during the shift, then time in lieu can be accrued. If in the pursuance of their duties staff are prevented from taking time in lieu, within 1 month of the requirement accruing, then payment can be made at the appropriate rate, alternatively, by agreement, be further accrued. Derogation 1. Rest Breaks may be excluded in circumstances where there is a need for continuity of service, including activities in relation to the reception, treatment or care of patients provided by hospitals or similar establishments. 2. Rest Breaks may also be excluded in circumstances where there is an emergency, or due to unforeseen or unusual circumstances. 3. Rest Breaks may be modified by a collective agreement. 4. Rest Breaks may be excluded in circumstances where the worker has unmeasured working time. 5. All such derogations require compensatory rest to be provided.
5. Night workers Standard Statement NHS Scotland night workers work no longer than an average of 8 hours over night and have regular health assessments. NHS Scotland will risk assess the health impact in all areas where night working occurs. Shifts, in an area identified as a special hazard, are no longer than 8 hours. Rationale Working at night has been proven to cause health problems. The nature of healthcare means that night working is essential and it is therefore important that additional protections are provided for NHS staff who work at night. Criteria 1. All staff who work 3 hours between 11pm and 6am are designated as night workers, including staff who work internal rotation, night shift workers and some staff who work oncall. 2. Shift systems are organised to support an average shift of 8 hours, however this does not preclude shifts of a longer duration, which do not exceed the average, over the reference period. 3. All night workers have a regular health assessment. 4. All areas with night workers have up to date risk assessments. 5. Control measures are implemented in areas identified as special hazards. 6. All shifts in areas identified as special hazards will be no longer than 8 hours. 7. Compensatory rest is achieved where the standard is varied or not achieved. Derogation 1. Length of night work, including the arrangements in respect of special hazards, may be excluded in circumstances where there is a need for continuity of service, including activities in relation to the reception, treatment or care of patients provided by hospitals or similar establishments. 2. Length of night work, including the arrangements in respect of special hazards may also be excluded in circumstances where there is an emergency, or due to unforeseen or unusual circumstances. 3. Length of night work, including the arrangements in respect of special hazards may be modified by a collective agreement. 4. Length of night work, including the arrangements in respect of special hazards may be excluded in circumstances where the worker has unmeasured working time. 5. All such derogations require compensatory rest to be provided.
6. Annual Leave Standard Statement All NHS staff are entitled to a minimum of 4 weeks annual leave each year. Rationale Healthy staff are of primary importance to the employer and it is recognised that adequately rested staff are an important element in assuring service quality and safety. Tired staff are more likely to make mistakes which will adversely impact on both the quality of care provided and their own safety. Criteria 1. Records of annual leave will be maintained by all NHS employers which demonstrate levels of annual leave taken by all staff. 2. NHS employers will ensure that all staff take a minimum of 4 weeks leave each year. 3. NHS employers will ensure that annual leave is paid leave. Derogation There are no permitted derogations to the annual leave Regulations.
7. Compensatory Rest Standard Statement All NHS staff are entitled to compensatory rest if there is any modification or exclusion to daily or weekly rest, rest breaks, length of night work, including in areas identified as a special hazard. In certain circumstances this must be granted immediately. Rationale Healthy staff are of primary importance to the employer and it is recognised that adequately rested staff are an important element in assuring service quality and safety. Tired staff are more likely to make mistakes which will adversely impact on both the quality of care provided and their own safety. Criteria 1. Shifts will be organised, as far as possible, to allow full rest entitlements to be achieved, limiting the circumstances in which compensatory rest will be required. 2. Staff entitlements to compensatory rest are recorded. 3. Arrangements for compensatory rest are formally agreed. 4. Where possible staff are compensated for the whole of the period modified or excluded. 5. Any exclusion/modification of rest periods will be based on objective reasons and might include reasons connected with continuity of care or service. 6. All NHS Scotland staff should achieve a minimum of at least 90 hours rest each week. 7. Immediate compensatory rest is required in circumstances where staff or patient safety could be compromised if not granted. e.g. a member of staff has worked for the majority of the call period, overnight and is also rostered to work the next day. 8. Onerous on-call patterns are replaced by other models. e.g. shift working, service redesign. Derogation Compensatory rest must be given where any entitlement has been compromised by derogation. A worker is entitled to compensatory rest when he/she is required to work during a period which would have otherwise been a rest period. Rest is defined by the Regulations as a period which is not working time. This means that any rest period which is interrupted must be compensated by rest. Compensatory rest need not be during paid time however this must be balanced by the immediacy of the requirement to protect the workers safety and health. This might mean that staff might need to take compensatory rest during a period that would normally be working time. This rest is given to compensate for the rest interrupted and therefore is not expected to have to be made up at another time. Staff should not suffer detriment as a consequence of exercising their rights under this legislation.
8. Unmeasured working time Standard Statement NHS Scotland will limit the number of workers with unmeasured working time. Rationale Limitation of the number of hours worked by individual workers in an average week is an important protection for health and safety. Limiting the hours of work of NHS staff will reduce risks to both patients and staff. Flexibility to determine working hours is an important aspect of some of the professions within the NHS and this flexibility should not be unnecessarily limited. Criteria 1. Staff who are classified as having unmeasured working time will be recorded. 2. Hours worked by these staff will be monitored and reviewed. 3. NHS employers will work to limit the number of staff with unmeasured working time. 4. If necessary NHS employers will limit the working hours of individual staff if risks to health and safety are identified. 5. NHS staff will have the option not to breach the maximum weekly working time, daily and weekly rest and night worker regulations, at any time, following a period of notice. Derogation 1. Maximum weekly working time, length of night work, including arrangements for special hazards', daily and weekly rest and rest breaks can all be excluded for worker s whose working time is wholly unmeasured. 2. Maximum weekly working time, length of night work, including arrangements for special hazards', daily and weekly rest and rest breaks can be excluded for that part of the worker s time which is unmeasured for those worker s whose working time is partially unmeasured. 3. No entitlement to compensatory rest is provided within the Regulations.
9. Collective Agreements Standard Statement Where any exception/exclusions are utilised within NHS Scotland these will normally be the subject of a collective agreement. Rationale Partnership working is a key principle within NHS Scotland. Whilst variation of the Regulations on the basis of the need for continuity of service does not require a collective agreement it is good practice to agree where variations, modifications or exclusions are necessary and how the arrangements for compensatory rest will work. Criteria 1. All NHS employers have collective agreements in place, in all areas where the entitlements are modified or excluded. These agreements at the appropriate level within the organisation. 2. Collective Agreements details the arrangements for compensatory rest. 3. Collective Agreements are monitored and regularly reviewed. 4. All NHS employers will identify an Executive Director to assume responsibility for ensuring individual collective agreements apply standards of fairness and consistency. Derogation 1. Collective Agreements may modify or exclude the application of the Regulations in respect of night work, daily and weekly rest and rest breaks; or for objective or technical reasons concerning the organisation of the work extend the reference period in respect of maximum weekly working time. 2. Derogations may be applied in circumstances where there is a need for continuity of service, including activities in relation to the reception, treatment or care of patients provided by hospitals or similar establishments without the need for a collective agreement. 3. Derogations may be applied in circumstances where there is an emergency, or due to unforeseen or unusual circumstances without the need for a collective agreement. 4. Derogations may be applied where the organisation of the shift pattern is such that the full period of rest cannot be taken without the need for a collective agreement.
7. Recommendations The sub-committee of the SPF commend the case study work which provides evidence and recommendations for action to achieve working time compliance. The sub-committee of the SPF recommend: Acceptance of the Framework of Assessment as a methodology and tool by which NHS employers can achieve compliance. Promulgation of the Framework by HDL to NHS Scotland with a date for completion of action plans. Monitoring of progress against action plans through the Accountability Review and Staff Governance staff survey. SPF commends the report to colleagues within the Solutions Group established by the Chief Executive NHSScotland. Alan Boyter Director of Human Resources North Glasgow University Hospitals Elizabeth Stow Regional Officer Society of Radiographers October 2002
Definitions Appendix 2 The following definitions explain some of the terms used within the Framework of Assessment. Opt- Out Special Hazard Individual workers may opt to work more than an average of 48 hours each week, provided he/she has agreed to do so in writing. The worker can withdraw his/her agreement at any time, following a period of not less than seven days notice. Workers cannot be suffer detriment if he/she does not agree to work beyond the maximum. No night worker shall work more than eight hours in any 24-hour period when the work involves special hazards or heavy physical or mental strain. Special hazards are not further defined within the Working Time Regulations but employers must take account of the Specific effects and hazards of night work; Risk assessments which identify a significant risk to the health and safety of workers; Heavy physical strain may include heavy lifting, monotonous work. Mental strain is more difficult to quantify however case law 6 would suggest that whilst there are no occupations which are intrinsically dangerous to mental health, the employer should find it easier to foresee the impact of stress at work in a known individual than the population at large. A number of factors were identified as relevant including: Work activities where it is possible to foresee that it may be dangerous to health; Nature and extent of work being done; Indications from employees themselves. Risk Assessment Derogation Employers have a particular duty to risk assess the risks posed to night workers. A model risk assessment tool is attached at Appendix 1 to this Framework. Derogation is the collective term for exclusions and exceptions which limit the rights and entitlements provided for by the Regulations. Derogations are available in limited circumstances. Unmeasured Working Time Unmeasured working time exists where on account of the specific characteristics of the activity, the duration of a workers working time is not measured or predetermined or can be determined by the worker himself/herself. Unmeasured working time may be wholly or partially unmeasured or predetermined. Where working time is unmeasured then it is possible to derogate from a number of the provisions of the Regulations, without the need for compensatory rest being provided for the unmeasured, predetermined element of the working time. Derogation s include maximum weekly working time, length of night work, including where special hazards are identified, daily and weekly rest and rest breaks.
1 the Working Time Regulations 1999 (S.I. No. 3372) and the Working Time (Amendment) Regulations 2001 (S.I. No. 3256) 2 Ingram A (2002) Implementation of the Working Time Regulations by NHS Scotland: Baseline Study 2000/1 unpublished, January 2002. 6 Walker v Northumberland County Council [1995] IRLR 35 Sutherland v Hatton & ors. [2002] EWCA CIV 76.
WORKING TIME REGULATIONS RISK ASSESSMENT FOR NIGHT WORKERS HAZARDOUS WORK CHECKLIST Directorate: Department: Working Rota: Assessed By: Signed: Date: Under the Working Time Regulations, night workers whose work does involve special hazards, or heavy physical or metal strain, must not work more than 8 hours at night in any 24 hour period. Below is a list of potential problems and sources of risks. To identify those performing hazardous work, please give your assessment of each; A STAFFING LEVELS 1 Skill mix and staff levels match patient activity/dependency. 2 Frequent use of bank and agency staff to cover gaps in the rota causing problems with skill mix / lack of experience. B PATIENT ACTIVITY 3 Strain on staff from constant demand from patients. 4 Heavy physical workload during the night from manual handling. 5 Frequent occurrence of violent/aggressive behaviour. 6 Frequent/serious emotional strain as a result of patient activity. 7 Significant work requiring careful judgements where mistakes would have serious consequences. Please specify: a) b) c) d) e) Not a Problem Slight Problem Definite Problem Serious Problem Action Required
WORKING TIME REGULATIONS RISK ASSESSMENT FOR NIGHT WORKERS C REST BREAKS 8 Pressure of work requiring staff to regularly work through their breaks. 9 Inadequate facilities (e.g. rest areas, refreshments etc.) available to staff. D LONE WORKERS 10 Risks from working alone. Please specify: a) b) c) d) e) 11 Lack of provisions for lone workers to call for aid. E SECURITY 12 Staff under pressure from risk of intruders. 13 Staff feeling at risk when moving around the hospital unaccompanied. 14 Other security problems (e.g. inadequate lighting, isolation etc). Please specify: a) b) c) d) e) 15 Additional help/support is rarely available. Not a Problem Slight Problem Definite Problem Serious Problem Action Required In light of the above, do you consider that your night workers should have their hours restricted to 8 hours per night on the grounds that work involves special hazards, or heavy physical or mental strain? YES / NO