Ratified Date: 20/03/2018

Transcription

1 Document Type: POLICY Title: European Working Time Directive (EWTD) Target Audience: All employees of the Trust including Locums and all staff on placement within the Trust employed under Lead Employer arrangements. Doctors in training (referred to as trainees) should also refer to New Deal regulations. Author / Originator and Job Title: Eleanor Palmer-Rigby, HR Business Partner Andrea Middleton, HR Advisor Replaces: CORP/POL/221, Version 2.1 European Working Time Directive Policy Validated (Technical Approval) by: HR Policy Forum Ratified (Management Approval) by: Joint Negotiating Consultative Committee (JNCC) Issue Date: 20/03/2018 Unique Identifier: CORP/POL/221 Version Number: 3 Status: Ratified Divisional and Department: Human Resources and Organisation Development (HR&OD) Risk Assessment: t Applicable Description of amendments: 3.5 Table of information 3.10 Reference made to Trust s Standards of Business Conduct Policy 3.11 Additional Information relating to Opt Out and Form (Appendix 1) 3.15 Suspicion of Fraudulent Activity Validation Date: 08/03/2018 Ratified Date: 20/03/2018 Which Principles of the NHS Constitution Apply? 3 Is this available on Royal Marsden? Review Date: 01/03/2021 Review dates and version numbers may alter if any significant changes are made aims to design and implement services, policies and measures that meet the diverse needs of our service, population and workforce, ensuring that they are not placed at a disadvantage over others. The Equality Impact Assessment Tool is designed to help you consider the needs and assess the impact of your policy in the final Appendix.

2 CONTENTS 1 Purpose Target Audience Policy Definitions: Responsibilities: Legal Entitlements: Rest Breaks at Work: Application of the regulations at the Trust: Night Work Health Assessments for Night Workers Rest Periods In-Work Rest Breaks Compensatory Rest Staff with more than one employer The 48 hour Opt-Out Clause Bench and Agency Workers Overriding issues of safety Records Suspicion of Fraudulent Activity Attachments Procedural Document Storage (Hard and Electronic Copies) Locations this Document Issued to Other Relevant / Associated Documents Supporting References / Evidence Based Documents Consultation / Acknowledgements with Staff, Peers, Patients and the Public Definitions / Glossary of Terms Author / Divisional / Directorate Manager Approval Appendix 1: Opt-Out Agreement Working Time Form Appendix 2: Equality Impact Assessment Form Page 2 of 14

3 1 PURPOSE To inform managers and staff of their rights and to highlight the responsibilities of the Trust under the 1998 Working Time Regulations. 2 TARGET AUDIENCE The policy applies to all staff employed within the Trust including locums. It also applies to all healthcare professionals on placement within the Trust including students and those employed on Lead Trust arrangements. 3 POLICY Blackpool Teaching Hospital (the Trust) is committed to the Health and Safety of its employees, acknowledges its obligations within the 1998 Working Time Regulations and requires its managers and staff to comply with the legislation and Section 27: Working Time regulations, of the Agenda for Change: NHS Terms and Conditions of Service Handbook (The Handbook) (AfC) Both the Working Time Regulations and Section 27 of the Handbook make provision for the times when it is not possible for an employee to take their entitlement to either a daily rest break or a daily rest period. The Handbook is clear that in exceptional circumstances it may not be possible for an employee to have an 11 hour daily rest period or a daily rest break. However, in these circumstances a period of compensatory rest should be provided (See Section 3.9). The Trust would not want to encourage Managers or staff to regularly plan working rosters that make it difficult to take entitlement to breaks; however it is acknowledged that there are times i.e. because of the requirements of the service or due to roster requests from staff, when rest entitlements will not be taken and compensatory rest given as an alternative. 3.1 Definitions: Working Time is any period during which the worker is working, at the employer s disposal and carrying out his/her activity or duties, in accordance with the national laws and / or practices. In relation to a worker, this means: Any period during which they are receiving relevant training Any additional period which is to be treated as working time for the purpose of the Regulations under a relevant agreement Rest Period shall mean any period that is not working time. In relation to a worker this means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations. Night Time is defined in this agreement as the period between 11pm and 6am. Page 3 of 14

4 Night Worker is someone who is working for at least 3 hours daily during night time hours as normal course. Therefore a normal course is defined as working at least 3 hours between the hours 11pm 6am on a regular basis. Shift Work shall mean any method of organising work in shifts whereby workers succeed each other at the same workstations according to a certain pattern, including a rotating pattern. This may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks. Shift Worker shall mean any worker whose work schedule is part of shift work. 3.2 Responsibilities: The application of these regulations with the Trust is particularly important to ensure the highest possible standards of healthcare and services, and the responsibility for compliance is shared between individuals, teams and their managers. Individual staff are responsible for ensuring that they inform their manger when they may not comply with the Working Time Regulations. Managers are responsible for ensuring that working practices, such as rosters, on-call, additional hours etc. do not breach the Working Time Regulations. 3.3 Legal Entitlements: The Working Time Regulations entitles all staff, excluding Junior Doctors (who are covered by national terms and conditions) to: A minimum of 28 days paid leave each year (depending on personal entitlement under AfC) each year (pro-rata for part time staff). This includes bank and public holidays A limit to the normal average weekly working time of 48 hours. A limit on night working to an average normal working time of 8 hours in 24 (refer to 3.6) Regular health assessments for all night workers Minimum daily and weekly rest periods: An uninterrupted rest period of 11 hours in each 24 hour period; An uninterrupted rest period of 24 hours in each 7 day period, or alternatively 48 hours uninterrupted rest in a 14 day period Young workers (those under18 years of age) are protected separately with uninterrupted rest periods of 12 hours in each 24 hours and 48 hours rest each week Page 4 of 14

5 3.4 Rest Breaks at Work: An uninterrupted break of 20 minutes where daily working exceeds 6 hours, which must not be taken at the start or end of the shift. Young workers (see 3.3 above) are entitled to an uninterrupted break of 30 minutes where daily working exceeds 4 1/2 hours. This must not be taken at the start or end of the shift. The regulations also apply to trainees engaged in any form of work experience, to agency staff and to bank staff. The regulations do not apply to the genuinely self-employed. 3.5 Application of the regulations at the Trust: Employees should not work more than 48 hours per week, averaged over a 17 week reference period. This can be extended to 26 weeks where staff are required to provide a 24 hour service. The table below explains what the Trust defines as what includes and excludes working time : Working Time includes: Resident standby; n-resident on-call time spent actually working i.e. staff who are available to work if called upon, will be regarded as working from the time they are required to undertaken any work related activity, including travelling time; Official duties, i.e. public office, health and safety responsibilities, trade union duties (but not activities) and training; Travelling time whilst on Trust business. Usual home to work, or work to home time should be deducted, if going directly to a Trust appointment, or going straight home from a Trust appointment. Working Time does not include: Meal breaks except where employees are required to work during meals; Travel to and from usual work base is not included in Working Time, unless the employee is oncall i.e. available to work if called upon, to undertake work related activities. Time spent from arrival at site to the employee s base of work, for example, the Trust car park to the employee s office, ward etc. All staff have a duty to present themselves in a condition where they are fit to work. Fatigue from undertaking work with other employers or additional work with the Trust could amount to a breach of this obligation. Managers have a responsibility to ensure that their staff are not rostered in to work where the pattern of work would lead to them suffering from fatigue. Page 5 of 14

6 3.6 Night Work Night workers should not work more than an average of 8 hours (in each 24 hours) over a 17 week period. Night time is a period of at least seven hours which includes the period from 11.00pm to 06:00 am. A night worker is someone who is working for at least 3 hours daily during night time hours as a normal course (on the majority of the days that they work, or on a regular basis). Where a night worker s work involves special hazards or heavy physical or mental strain as defined by the Regulations, there is an absolute limit of eight hours placed on each individual night shift. Work will involve a special hazard when this work has been identified as involving a significant risk following a risk assessment in accordance with the Management of Health and Safety at Work Regulations The Trust will make available, on request, health assessments for staff who are regularly required to rotate between day and night shift patterns where this is deemed to be appropriate by their line manager Health Assessments for Night Workers The Trust will make health assessments available for all members of staff about to become night workers and will provide the opportunity for all night workers to have further assessments at regular intervals. Health assessments are already undertaken within the normal recruitment process. Night workers will, in addition, be encouraged to undertake further assessments at regular intervals. Line managers will remind employees of the availability of such assessments and record that they have done so, for example, during staff appraisal. Where Occupational Health has advised the Trust that the worker is suffering from health problems connected with the fact that they work at night, they will be temporarily or possibly permanently transferred, if at all possible, to other suitable work which is not at night with appropriate pay and conditions of service. Wherever possible, staff should be transferred to a post within their existing team. 3.7 Rest Periods Daily Rest a worker is entitled to a rest period of 11 consecutive hours in each 24 hour period (12 hours in 24 for young workers). Weekly Rest a worker is entitled to an uninterrupted rest period of not less than 24 hours in each 7-day period or 48 hours in each 14-day period. (48 hours in each week for young workers). Where daily rest cannot be taken because a worker is changing shifts the Trust should make arrangements to allow equivalent compensatory rest as soon as practicable (See Section 3.9 Compensatory Rest). Page 6 of 14

7 3.8 In-Work Rest Breaks A worker is entitled to an uninterrupted unpaid break of 20 minutes when daily working time is more than 6 hours (30 minutes in 4 ½ hours for young workers). All staff within the Trust are entitled to an unpaid break of 30 minutes when their daily working time is more than six hours. Exceptionally, this may not be possible where this could adversely affect the requirements of the service. The requirement is for a break in actual working time, which must not be taken at either the start or end, of a working day. Rest breaks are normally unpaid and should not overlap with a worker s daily rest period. The Trust does not expect staff to undertake any form of work during their unpaid break. When, in exceptional circumstances, as described above, there is a requirement to work during a break, staff will be offered paid time or time off in lieu in respect of this at the discretion of the manager. (Section 3 - Time Owing / Time off in lieu (TOIL) Policy). The link to this policy is as follows: Compensatory Rest Provision is made throughout the Regulations for workers to take an equivalent period of compensatory rest when daily or weekly rest periods are not obtained. There is no provision for payment of compensatory rest periods. Having to make allowance for compensatory rest should be the exception. All staff are entitled to an 11 hour rest break in each 24 hour period, in simple terms this is usually seen as an 11 hour break between shifts. For this reason the Trust does not encourage the use of a roster where a late shift is followed by an early shift if the break is less than 11 hours. However, the 11 hour rest period requires more attention where staff are required to be on-call between shifts. Compensatory rest is an integral part of the Working Time Regulations as Health and Safety Law. It should, as a rule, be taken before the beginning of the next duty period and cannot be aggregated and taken at a later date. In exceptional circumstances where the break at the start of the next duty period would cause unacceptable disruption to services, the rest may be taken at another time during the same duty period by agreement between the employee and their line manager. This should be recorded by the Line Manager. Daily Rest Periods on-call working When the rest period between shifts is greater than 11 hours there will be no requirement to award compensatory rest if the total hours in the rest break, minus the number of hours actually worked when on-call, are still greater than 11. For example; where the total number of hours in a rest period between shifts is 15, and the member of staff is called out to work during on-call for a total of 3 hours, then the rest period is still 12 hours. Therefore no compensatory rest is required. Page 7 of 14

8 Where the total hours in the rest break, minus the number of hours actually worked, are less than 11 then compensatory rest will be required. Where the hours worked on call are paid, compensatory rest will be unpaid and the hours taken as compensatory rest will be worked at another time. The period of compensatory rest will be equivalent to the difference between the required daily rest break period (11 hours) and the actual number of hours of rest. This compensatory rest should be managed within existing shift patterns, for example, by ensuring that the shift following a period of on-call can be worked flexibly to take account of the requirement to take compensatory rest. Sufficient rest for safe working Exceptionally, in the event that a member of staff on-call has experienced severe lack of rest, particularly between midnight and a.m., with less than 5 hours uninterrupted rest, or been involved in a traumatic incident which they consider renders them unfit to undertake their normal duties the following morning, they may take further rest before commencing work the following morning. The member of staff should normally commence work no later than noon, unless otherwise agreed with their line manager. Where the hours worked on-call are paid, compensatory rest will be unpaid and the hours taken as compensatory rest will be worked at another time Staff with more than one employer Employees Responsibility: Staff are under a duty of care to ensure that their own health, safety and welfare and that of others is not adversely affected by the total hours worked in this Trust or combined with another employer(s) For that reason, and in accordance to the Trust s Standards of Business Conduct Policy all staff are required to disclose whether they work for another employer and the number of hours worked. Failure to do so may result in disciplinary action. The link to the policy is as follows:- ( ) The link to the declaration forms as follows:- Staff who have more than one job should either: 1. Consider completing an opt-out form, with the agreement of the Trust, if the total time worked is over 48 hours per week on average; or 2. Reduce their working hours to meet the 48-hour limit. The Trust reserves the right to restrict hours worked to ensure compliance with the Working Time Regulations or contractual arrangements where the additional hours Page 8 of 14

9 worked have an adverse effect on an employee s performance or attendance at work. This will include an adjustment to pay as appropriate The 48 hour Opt-Out Clause Although the EWTD applies to all member states, in the United Kingdom it is possible to "opt out" of the 48-hour working week in order to work longer hours, if you are over 18 years old. All employees wishing to undertake additional work activities (above an average of 48 hours a week) are required to declare these to the Trust by completing a EWTD Opt Out Form. This is available in Appendix Bench and Agency Workers Those who work on the Bench or via an agency are considered to be workers, as defined by the Regulations, during any period which they work for the Trust. They will therefore enjoy the rights and entitlements in this agreement whilst they are working for the Trust Overriding issues of safety If, despite the application of these rules, an employee feels that they are unsafe to perform their duties due to tiredness following interruptions to rest, they should inform their line manager who should discuss the circumstances and the duties to be undertaken. The line manager should act with a view to allowing the individual to take appropriate, immediate rest. In the circumstances the line manager should take account of whether the individual is able to return home safely. The Trust s duty of care extends to tiredness caused by staff working in other employment. If an employee has a second, or further jobs with one or more other employers, it is a requirement to inform the Trust, in order than an evaluation can take place of the potential risks of over tiredness (see Section 3.9) Records Records of the following need to be kept as required by the Working Time Regulations 1998: Night work limits Health assessments for night workers Compensatory rest Number of hours worked when the worker agrees to work more than the maximum weekly limit. In this instance the record will: Identify the worker Set out the terms of the agreement, which may apply indefinitely or relate to a specified period Page 9 of 14

10 Specify the number of hours worked for each reference period since the agreement came into effect. (This excludes any period which ended more than 2 years before the beginning of the available reference period). Where an employee works for another employer in addition to the Trust it is the employee s duty to inform the Trust of that alternative employment and the hours from time to time that the employee works for that employer. These records must be available for inspection by the Health and Safety Executive or any other authority which is responsible for enforcement Suspicion of Fraudulent Activity Any suspicions of fraudulent activity will be referred to the Trust s Counter Fraud Specialist for detailed information gathering. Should such an investigation find reasonable grounds to suspect an offence has been committed, further action will be taken, in accordance to the Trust s counter fraud and corruption policy. Further advice can be obtained from the Trust s Counter Fraud Specialist. 4 ATTACHMENTS Appendix Number Title 1 EWTD Opt Out Form 2 Equality Impact Assessment Form 5 PROCEDURAL DOCUMENT STORAGE (HARD AND ELECTRONIC COPIES) Electronic Database for Procedural Documents Held by Procedural Document and Leaflet Coordinator 6 LOCATIONS THIS DOCUMENT ISSUED TO Copy Location Date Issued 1 Intranet 20/03/ Wards, Departments and Services 20/03/ OTHER RELEVANT / ASSOCIATED DOCUMENTS Unique Identifier Title and web links from the document library CORP/POL/358 Standards of Business Conduct Policy POL-358.pdf CORP/POL/548 Time Owing / Time off in lieu (TOIL) POL-548.docx 8 SUPPORTING REFERENCES / EVIDENCE BASED DOCUMENTS References In Full Crown. (1998). The Working Time Regulations Available: Last accessed 27/03/2018. Page 10 of 14

11 8 SUPPORTING REFERENCES / EVIDENCE BASED DOCUMENTS References In Full Crown. (1992). The Management of Health and Safety at Work Regulations Available: Last accessed 27/03/2018. The NHS Staff Council. (Amendment number 38: Pay and Conditions Circular (AforC) number 1/2017). NHS Terms and Conditions of Service Handbook. Available: Last accessed 27/03/ CONSULTATION / ACKNOWLEDGEMENTS WITH STAFF, PEERS, PATIENTS AND THE PUBLIC Name Designation Date Response Received Policy Forum Policy Forum Group 20/03/ DEFINITIONS / GLOSSARY OF TERMS the Trust Blackpool Teaching Hospital NHS Foundation Trust Young Worker Those under 18 years of age 11 AUTHOR / DIVISIONAL / DIRECTORATE MANAGER APPROVAL Issued By Andrea Middleton Checked By Job Title HR Advisor Job Title Policy Forum Group Date 20/03/2018 Date 20/03/2018 Page 11 of 14

12 APPENDIX 1: OPT-OUT AGREEMENT WORKING TIME FORM Individual Opt-Out Agreement Working Time Regulations Regulation 4(1) of the Working Time regulations states that a worker s working time including overtime in a reference period over 26 weeks shall not exceed an average of 48 hours for each 7 day period. The Trust is required to take all reasonable steps to ensure that this limit is complied with. I, employed as a within understand that I may work in excess of the 48 hour average working week and that this limit in accordance with regulation 4(1) of the Working Time Directive will not apply to me. Should I wish to terminate this agreement I will provide Blackpool Teaching Hospitals NHS Foundation Trust 1 month notice. Name: Forename Surname Grade Specialty Signed Date Head of Department: Forename Surname Grade Specialty Signed Date Page 12 of 14

13 APPENDIX 2: EQUALITY IMPACT ASSESSMENT FORM Department Organisation Wide Service or Policy Policy Date Completed: vember 2013 GROUPS TO BE CONSIDERED Deprived communities, homeless, substance misusers, people who have a disability, learning disability, older people, children and families, young people, Lesbian Gay Bi-sexual or Transgender, minority ethnic communities, Gypsy/Roma/Travellers, women/men, parents, carers, staff, wider community, offenders. EQUALITY PROTECTED CHARACTERISTICS TO BE CONSIDERED Age, gender, disability, race, sexual orientation, gender identity (or reassignment), religion and belief, carers, Human Rights and social economic / deprivation. QUESTION RESPONSE IMPACT What is the service, leaflet or policy development? What are its aims, who are the target audience? Does the service, leaflet or policy/ development impact on community safety Crime Community cohesion Is there any evidence that groups who should benefit do not? i.e. equal opportunity monitoring of service users and/or staff. If none/insufficient local or national data available consider what information you need. Does the service, leaflet or development/ policy have a negative impact on any geographical or sub group of the population? How does the service, leaflet or policy/ development promote equality and diversity? Does the service, leaflet or policy/ development explicitly include a commitment to equality and diversity and meeting needs? How does it demonstrate its impact? Does the Organisation or service workforce reflect the local population? Do we employ people from disadvantaged groups Will the service, leaflet or policy/ development i. Improve economic social conditions in deprived areas ii. Use brown field sites iii. Improve public spaces including creation of green spaces? Does the service, leaflet or policy/ development promote equity of lifelong learning? Does the service, leaflet or policy/ development encourage healthy lifestyles and reduce risks to health? Does the service, leaflet or policy/ development impact on transport? What are the implications of this? Does the service, leaflet or policy/development impact on housing, housing needs, homelessness, or a person s ability to remain at home? Are there any groups for whom this policy/ service/leaflet would have an impact? Is it an adverse/negative impact? Does it or could it (or is the perception that it could exclude disadvantaged or marginalised groups? Does the policy/development promote access to services and facilities for any group in particular? Issue Action Positive Negative All members of the Trust ne n/a n/a n/a no n/a Yes night shift workers are offered an annual assessment by occupational health Annual Assessment offered Yes Page 13 of 14

14 APPENDIX 2: EQUALITY IMPACT ASSESSMENT FORM Does the service, leaflet or policy/development impact on the environment During development At implementation? ACTION: Please identify if you are now required to carry out a Full Equality Analysis Name of Author: Signature of Author: Name of Lead Person: Signature of Lead Person: Name of Manager: Signature of Manager Yes (Please delete as appropriate) Date Signed: Date Signed: Date Signed: Page 14 of 14