In an unexpected decision, the European Court of Justice (ECJ) has departed from the advice of the Advocate-General (given back in March) and held that Irish contractual terms regarding junior doctors' training do not breach the Working Time Directive. 

In Commission v Ireland (case C-87/14), the ECJ said that there was no evidence that time spent training should be considered as working time; whereas the Advocate-General had said that training hours of non-consultant hospital doctors should be included in 'working time' under the Working Time Directive ('the Directive') – and by not including such hours, the Irish government breached European legal requirements.

However, the ECJ has rejected that argument and said that there was a lack of evidence to support the claim that training (whether at the employer's premises or otherwise) counted as 'working time' for the purposes of the Directive.  No evidence was provided that the training requirement met the definition of 'working time', i.e. time when the employee is required to be physically present at the place determined by the employer and to be available to provide appropriate services immediately in case of need.

Furthermore, the ECJ said that an extended reference period of 12 months for calculating daily and weekly rest periods did not breach the Directive. Ireland successfully argued that it could rely on objective reasons for the extension, concerning the organisation of work, namely that training must be rostered flexibly in order to comply with statutory obligations . There was no evidence presented to demonstrate that the conditions for extending the reference period had not been met.

The ECJ's press release on the Commission v Ireland decision can be accessed here.

The full text of the decision (and the earlier Advocate-General's Opinion) can be accessed here.

The decision does not contain clear guidance about what training scenario may be regarded as working time. Further guidance is needed so, at this stage, this development may be of limited significance to NHS employers in England.  However, it does appear that  the ECJ's decision is likely to feed into the European Commission's consultation on Working Time in 2016 and Health Education England is already exploring if, and how, some training activities could be separated from working time.  Therefore, when looking at the challenges of service delivery and rota design, within the confines of the current Working Time Regulations, we may be seeing more separation of working and training activities.

If you have any  queries or require further information, please do contact me or your usual Bevan Brittan contact.

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