Asleep on the job

The european court’s ruling that junior doctors are working when on call – even if they are asleep – has serious implications for trade union lawyers and the future of the nhs. Jon Robins reports

No sooner had Brendan Barber, general secretary of the Trades Union Congress, called upon un-ions to insist on Britain signing up to the European Working Time Directive at the Brighton conference earlier this month, than the European Court was on hand with a particularly vivid illustration of just how explosive a political issue on working time can be. The Luxembourg court ruled that junior doctors in Germany were ‘working’ when on call, even if they were sound asleep. The judgment is expected to cost Germany’s health service an extra E1bn to pay for a further 15,000 doctors to staff its wards.
Commentators have been quick to speculate on the kind of crippling impact this case would have on our own cash-strapped National Health Service (NHS) with its impending staff crisis. Even the opposition health spokesman, Dr Liam Fox, bluntly described the ruling as “a body blow” to the NHS.
But was it a surprise? “It would have been inconceivable that the court would have gone the other way,” reckons John Evans, chairman of the Employment Lawyers International Committee and a partner at US firm Coudert Brothers. The action was brought by a German casualty doctor, Norbert Jaeger, on the application of the Working Time Directive, which comes into force in August 2004 and sets a maximum average working week of 58 hours for junior doctors. Dr Jaeger, who worked in a hospital in Kiel, brought the challenge on the grounds that his boss only counted the time he was awake as full working hours.
“The Jaeger case is an indication of the thinking of the courts, and their view is stated in no uncertain terms,” Evans continues. “And so, if someone is sleeping, even asleep at their employer’s desk, it is to be treated as ‘working time’.” As the lawyer points out, the judgment comes on the back of the ruling of the European Court in 2000, known as the Simap (Systeme d’Information pour les Marches Publics) judgment, which held that Spanish junior doctors sleeping overnight in a hospital must be counted as ‘on duty’.
Union calls to scrap the UK’s opt-out from European limits on working hours will become all the stronger over coming weeks as the Department of Trade and Industry responds to the European Commission review of the directive this autumn. The Commission has promised to publish a report on its implementation by the end of the year. The report will include the controversial issue of an individual’s right to opt out of the 48-hour working week. Although the UK has opted out, it has agreed to phase in the directive gradually. As of next year there is a 58-hours-a-week maximum for junior hospital doctors, with this limit falling gradually to 48 hours by 2009. The NHS is already struggling to keep to the higher limit – and that’s without taking into account rest hours.
Earlier in the year, the Employment Lawyers Association conducted its own survey of 700 businesses, in both the public and private sector, and found that more than three-quarters (78 per cent) supported the opt-out. Of great surprise to the EC was that the survey (which itself was the result of a request from Brussels) found that 65 per cent of employers took advantage of the opt-out by asking workers to sign an agreement to work more than 48 hours a week.
But the pervasive influence of the working time rules, as evidenced on the Continent in the Jaeger and Simap rulings, was felt much closer to home this month. A tribunal ruled, in a case taken by nine women resident wardens employed by the London Borough of Harrow, that workers forced to be on call were protected by the regulations, as well as the National Minimum Wage Act, and should be properly paid for their time on standby. In this case the women lived in, or next to, the sheltered homes and worked a basic 37-hour week. But they were permanently on call for another 76 hours a week and, apart from a seven-hour break during the week and weekends, they were required to be on call or on constant standby. The tribunal ruled that those hours on call were work, placing the employers on breach of the directive. The tribunal awarded £1,500 to each of the women in compensation for the council’s breach of the regulations. The women, who worked in a sheltered housing scheme in Sudbury Hill, are awaiting agreement on their back pay for the unpaid hours they worked over many years, which could be in the region of £200,000.
“This recognises the right of every working person to enjoy some sort of social life away from work,” says Anita Vadgama, the solicitor at union firm Thompsons, which handled the case. “These women were trapped for 24 hours a day, five days a week, and couldn’t leave their homes because they were on call.”
“Since this decision has hit the press we have been inundated from other workers in the same position,” says GMB union officer Tony Warr. “We are now saying to workers across the range of services to examine their contracts of employment and see whether or not the terms of standby are consistent with the decision of the employment tribunal.”
John Clinch, the legal officer at Unison (see profile, below) welcomes the ruling of the European Court. Does the Jaeger ruling shut off any chance of a successful appeal of the Harrow ruling? “I don’t think so,” he replies. “A lot of these cases depend on their individual facts as to whether people can be regarded as ‘working’ or ‘on call’. That is [for example] if workers were given mobile phones they could leave the accommodation and they would no longer be regarded as being ‘on call’. That could profoundly affect the outcome of the case.”
As far as the European Court is concerned, the Jaeger case goes further than the Spanish case in one important respect. As Stephen Cavalier, head of employment rights at Thompsons, explains, in certain sectors, such as healthcare, there can be an adjustment to the working time provisions by agreement, if there is an equivalent period allowed for compensatory rest. “The German law allowed for this,” he continues. “But the court has now said that this equivalent period of compensatory rest must immediately follow the period of work.” The lawyer represented thousands of Bectu members, the broadcasting and entertainment union, in their landmark case before the European Court of Justice where the UK government was held to be in breach of the Working Time Regulations in denying freelance workers and those on short-term contracts the right to four weeks paid annual leave.
As Cavalier points out, there is a widespread practice for employers to schedule a work pattern over a period of time, which loosely incorporates the compensatory rest periods. “The Jaeger ruling states that the rest periods must immediately follow the working time to prevent the worker from experiencing fatigue or overload due to the accumulation of consecutive periods of work,” he explains.
The Jaeger and Simap rulings have been seized upon by some as another example of unchecked Euro excess. “It’s time for Labour to stop its utterly supine approach to EU interference in the health service and for once to stand up for patients,” said Dr Liam Fox after this month’s judgment. The Royal College of Physicians (in a report leaked to The Independent earlier in the year) described the Simap ruling as “unexpected, counter-intuitive” and one that would deliver a “huge and potentially devastating impact on the entire fabric of acute hospital medicine in the UK, with medical workforce shortages threatening standards of medical care”.
Robin Bloom, employment partner at North East firm Dickinson Dees, who has mainly an employer practice, describes himself as “uncomfortable” with the tribunal use of the working time rules in the Harrow case. “It seems to me that the argument that these people were effectively tied to the building for 76 hours, making that time ‘working time’, is not entirely logical,” he argues. “I have difficulties with the ruling because the way the law goes is if you have one case – and this is only a tribunal decision – the next person uses the ratio of that case and extends it slightly. Then we are faced with a pervasive extension of the scope of the law and it becomes difficult to advise employers properly because the goal posts are moving.”

Unison: the trouble with trade unions and the laws that prevent its work
Now that all the in-fighting and promises of a “return to the 1970s” of the Trades Union Congress meeting is over for another year, the legal department of Unison, Britain’s largest union, which has more than 1.3 million members across the public services, looks set to be busy.
While this month’s conference demonstrated that political passions were running high among delegates, many rank and file members appear to have more practical reasons for signing up to unions these days. “Time and time again, it is legal services that have been cited in the research as the prime reason why people join unions,” says John Clinch, Unison’s legal officer.
So what has happened to solidarity and fighting for workers’ rights? As Clinch says: “There has certainly been a move that is reflective of a shift away from the more collective role unions used to play in the enforcing of individuals’ rights – and whether or not that is a good thing is up to you – but it’s a fact.”
Thompsons deals with much of the routine legal work. Every year the firm deals with 1,500 personal injury cases, and the union claims to have won more than £35m in compensation for members involved in work-related injuries last year. It also handles between 300 and 500 employment cases every year and Unison’s regional offices also represent members before tribunals. Unison provides a wide array of legal services to its members, such as cover for accidents outside work (including family members), and free legal representation if they face criminal charges arising out of their work. Outside the workplace, Unison offers free legal advice on any matter provided by a free 30-minute telephone interview with a solicitor, a free wills service and cut-price conveyancing. Somewhere between 5 and 10 per cent of Unison membership subs goes towards legal services.
The six lawyers at Unison’s headquarters sit in two departments, the Employment Rights unit (Adam Crème, head of unit, John Clinch, Unison’s legal officer, Kathleen Thornton, Sarah Mann) and the Legal Services Unit (Katy Clark and Helen Buczynsky).
The team operates what Clinch calls “a strategic legal function” within the union. “It is the work that might be considered to be a priority for our members,” he explains, citing equal pay, working time issues, and discrimination against the union as ‘strategic’ issues. To this end, the union was behind groundbreaking recent test cases, such as Dunnachie v Kingston Upon Hull City Council (concerning the power of tribunals making awards for damages for injury to feelings in unfair dismissal cases, which is due in the Court of Appeal in November) and Preston & ors v Wolverhampton Healthcare (the landmark decision by the House of Lords that opened the way for about 60,000 part-time workers, mainly women, to backdate their pension claims to 1976).
But dealing with the law is a fact of life for the union movement. “Unions are among the most regulated organisations in the country and legislation, such as the Trade Union and Labour Relations (Consolidation) Act 1992, imposes a huge raft of regulations on how unions conduct their internal affairs,” says Clinch. “It’s designed to trip up unions as often as possible and make industrial action as difficult as possible and that’s the way we have to engage with law and free-up ourselves.”
The lawyer quotes Tony Blair’s famous boast during the 1997 election campaign. “The changes that we propose,” he said, “would leave British law the most restrictive on trade unions in the western world.”
“As the dear PM says, we have the world’s most restrictive laws on industrial action, and he wasn’t ashamed about that at all,” Clinch says. “They are very much still in place and one of the big bugbears that the union movement has at the moment is that the Government hasn’t shifted too much from that position. So, like it or not, unions are stuck with having to use the law to achieve their goals and objectives.”