Secret deal on working time could be sunk by opt-out row

European Union (EU) member states have reached an unofficial agreement about ‘on-call’ working time that could help to avert a major staffing crisis for the NHS and other employment sectors in the UK.

But arguments over the UK’s opt-out to the Working Time Directive (WTD) seem likely to scupper the plan, prompting senior MEPs to call on the government to separate the two issues.

Sources in Brussels told Personnel Today that representatives of member states agreed with a UK government proposition that on-call time should be divided into ‘on-call’ and ‘inactive’ working time.

The proposal follows adverse reaction to two European Court of Justice rulings in the SiMAT and Jaeger cases, involving hospital staff, which stated that time spent on-call should all be regarded as working time, even if the doctor was asleep for part of the period.

The Lords’ EU committee warned that “the effect would be tantamount to losing the equivalent of 3,700 junior doctors”, who are allowed to work a maximum of 58 hours a week

If the new agreement was implemented, it would mean staff who are at work but “not required by [their] employer to effectively carry out [their] activity or duties” would not have to count those hours towards the maximum working week set down by the WTD. This would, be classified as inactive working time.

On-call time would mean periods during which “the worker has the obligation to be available at the workplace, at the employer’s request, to carry out his activities or duties”.

But the on-call issue is likely to be sidelined, as it is presently tied in with wider arguments over the UK’s opt-out to the WTD. A last ditch attempt by the government to push through a compromise on the opt-out at the end of the UK’s European presidency in December failed.

Conservative MEP Philip Bushell-Matthews called on the government to be proactive and push the issue of on-call working time in isolation. “This is what discussions in the council are for,” he said. “They need to say: ‘This isn’t working so let’s make a deal on something we can agree on and come out looking less like prats’.”

But a spokesman for the Department of Trade and Industry said: “Until there is agreement on all the issues, there is no agreement at all.”

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