Employers who do not include time spent by staff on call as part of the working week could find themselves in breach of the EU Working Time Directive. This is the main result of a new judgment from the European Court of Justice.
In a case brought by SIMPAP, the Spanish health services union, on behalf of a non-consultant hospital doctor in Valencia, the court found that hours spent on call in a hospital or health centre should be considered shift work and be treated accordingly in calculating pay and hours worked.
It also ruled that collective agreements derogating from EU law on working hours were not binding on individual workers, who must give their consent as individuals before such agreements came into force.
However, the court ruled that workers on call outside the workplace were in a different category. As they were "in position to manage their time with fewer constraints" they were not entitled to the same benefits as staff required to remain on site.
The groups most immediately affected by the ruling are non-consultant hospital doctors and other health service professionals. The judgment was signalled in an opinion of an advocate general of the court last June and its implications were considered during negotiations to settle the doctors' strike in July.
Yesterday the chief executive of the Health Services Agency, Mr Gerard Barry, said he believed the implications of the judgment had been covered by the agreement. This provides for doctors on call in hospitals to be paid the full rate, including overtime where applicable. Doctors on call off site are paid at lesser rates. The agency is seeking legal advice before taking a definitive position.
The Irish Medical Organisation, which represents most non-consultant hospital doctors, is also taking legal advice.
Its director of industrial relations, Mr Fintan Hourihan, believed the judgment vindicated the union position in last summer's dispute by ruling that on-call duties fell within the remit of the Working Time Act. He estimated that 85-90 per cent of junior doctors worked on call regularly. Other groups likely to study the ruling closely are nursing unions representing operating theatre staff, and IMPACT, which represents childcare staff and social workers.