Doctors on call
Labour & European Law Review Weekly issue 52 - November 2000 01 November 2000
Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (European Court of Justice, 3 October 2000)
The European Court has now given its first judgment on the Working Time Directive. The case was brought by SIMAP, a union representing Spanish doctors, and concerned medical staff providing primary care in health centres in the Valencia region.
The Court considered a number of important issues on the scope and application of the Directive which will have implications for workers throughout Europe, including the UK.
The Directive and public sector workers
The employers argued that the medical staff were not covered by the Directive because of Article 2(2) of the Framework Directive on health and safety which states that it does not apply "where characteristics peculiar to certain public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it"
The Court stressed that both the Framework Directive and the Working Time Directive have the object of improving the health and safety of workers and must be broad in scope. The restriction in Article 2(2) must be interpreted narrowly and applies to certain public service activities intended to uphold public order and security which are essential for the proper functioning of society.
The activity of primary care teams is of a different nature and therefore is not excluded by Article 2(2): it falls within the Framework Directive and the Working Time Directive.
This aspect of the decision is helpful in limiting the number of public sector workers who will be excluded from health and safety and working time protection to those directly involved in public order and security.
It may also be helpful when the ECJ considers the scope of the transport sector exclusion in the UK referred case of Bowden v Tufnells Parcels Express Ltd (see LELR issue 49) where Bowden and her colleagues are arguing that the exclusion does not extend to clerical workers in the transport sector.
What is working time?
This is the aspect of the decision with the most obvious direct impact on public sector workers, and particularly health and care workers in the UK.
The Working Time Directive defines working time as any period during which the worker is
- at the employer's disposal; and
- carrying out his/her activities or duties.
The Advocate General in his Opinion to the Court had suggested that for a period to count as working time it was sufficient for it to satisfy any one of the requirements - it was not necessary to satisfy all three. The Court does not appear to take the same view.
This becomes apparent when the Court is considering whether time spent on call is working time. The Court considered two situations: the first where the doctor is on call and required to remain at the health centre throughout the period on call (commonly referred to as "standby") and the second where the doctor is on call by being contactable at all times without having to be at the health centre (this is what is more commonly referred to as "on call"). In both scenarios the ECJ considered whether all three conditions were fulfilled in order to determine whether the period counted as working time.
For periods on standby, the Court said that the first two conditions (working and at the employer's disposal) were obviously fulfilled. The Court also thought that the third condition (carrying out activities or duties) was fulfilled as doctors were obliged to be present and available at the workplace with a view to providing their professional services and are therefore carrying out their duties. Periods on standby therefore count as working time.
The Court reached a different conclusion for periods on call. The Court concluded that even though medical staff on call are at the disposal of their employer (because they can be called in at any time), they may "manage their time with fewer constraints and pursue their own interests". In consequence, the Court decided that only those periods linked to the actual provision of primary care services (ie when actually called out or called upon) are to be regarded as working time.
This will be relevant to health workers and care workers in the UK and for other workers who have periods on call or on standby - for example maintenance workers. If the worker is required to attend at the employer's premises for the shift, in case required, that counts as working time. This would also be the case for staff who work in catering or retail, are required to be present throughout the day, but are only paid when serving customers (so-called zero hours contracts): the full period would be working time for the purpose of the provisions of the Directive.
The decision is not so helpful for those on call, but not at the employer's premises. The periods whilst on call, but not called will not be working time. However, as soon as a call is received and action or advice is required, that period whilst carrying out those duties counts as working time.
One may argue against this distinction on the basis of legal interpretation. However, it is a practical outcome which mirrors the approach taken in the Whitley Council agreement on working time in the National Health Service. The fact that periods on call are not themselves automatically working time does not allow employers to roster those periods without regard to the Directive. As soon as a worker on call is called out or called upon, the working time clock starts to tick, a rest period has been interrupted and there are consequences in terms of the requirement for compensatory rest.
Night work, shift work and direct effect
The European Court considered that in this case the question of whether the doctors concerned were night workers was one for the national court, but it concluded that the doctors were shift workers because they were assigned to the same posts on a rotational basis, making it necessary for them to perform work at different hours over a given period of days or weeks.
The final point concerned direct effect of the Directive for public sector workers. The Court concluded that the provisions on the reference period for calculating the average working week were sufficiently unconditional and precise to have direct effect. This may suggest that when considering a different Article of the Directive (Article 7 on paid annual leave) the UK Court of Appeal in the Gibson v East Riding case was unduly restrictive in determining that the provision in question did not have direct effect.
BECTU's challenge to the requirement to have 13 weeks continuous service in order to qualify for the right to paid annual leave under the UK working Time regulations will be heard in the ECJ on 7 December. It will be followed by the Advocate General's opinion and the judgment of the Court will follow after that.