In a test claim brought by a junior doctor, the Court of Appeal has held that an NHS trust had failed to comply with its contractual obligations when monitoring junior doctors’ hours of work and ensuring that they received 30-minute natural rest-breaks after approximately four hours continuous duty.
The case has wide-ranging financial and practical implications across the NHS in relation to those junior doctors still on the national Terms and Conditions of Service for NHS Medical and Dental Staff (England) 2002 (the TCS) and exposure to risk in relation to previous monitoring exercises.
Under the TCS and conditions of service junior doctors and dentists in England working in hospitals are paid:
- a basic salary plus
- a percentage uplift (known as a band)
The band can range from 0% to 100% of the doctors basic salary depending on the length and intensity of the hours they work.
The trust designs a rota setting out the hours that the trust expects the doctors to work each day. The rota will set the expected band (usually between 10 and 20% uplift). The trust then monitors the doctors on the rota, usually twice a year, to ensure that the band is correct.
Where the actual working patterns of the doctors on the rota is not compliant with the rota, for example, because they are working excessive hours or not getting the required breaks, the outcome of the monitoring can be that the rota is non-compliant. This may entitle the doctors on the rota to up to a 100% uplift (band 3) on their basic pay.
Junior doctors must be allowed to take a 30-minute -break after approximately four hours’ continuous duty, otherwise a band 3 (100% uplift) supplement is payable. Guidance documents used across the NHS state that the 30-minute break must be achieved on at least 75% of occasions for a rota to be compliant and avoid the band 3 supplement.
During the two-week monitoring period, the doctors on the rota complete timesheets that record the actual hours they worked each day and the breaks that they take.
For a monitoring process to be valid at the trust, at least 75% of doctors on the rota must submit the timesheets and the timesheets submitted must cover at least 75% of all duties worked over the monitoring process.
NHS trusts use computer software, such as Allocate, to make the complex calculations needed to allocate the band. Where junior doctors fail to submit the timesheet within the necessary period after the monitoring period or where the doctor is absent for other reasons, such as annual leave or sickness, the software will often compute the band on the basis that the absent doctor would have had the necessary breaks and worked in accordance with the rota.
H, who acted as the test claimant, was one of a group of 20 junior doctors employed on the trust’s General Surgery rota. The junior doctors were employed on the trust’s Principal Terms of Contract of Employment (which follows the model contract used by all NHS trusts and incorporates provisions of the TCS).
The trust used Allocate software (common across the NHS) to manage its junior doctor’s hours monitoring exercises.
Between August and December 2013, the trust conducted two monitoring exercises:
The first monitoring round was considered valid (due to sufficient returns) and found the rota to be compliant on breaks.
The second monitoring round was considered invalid (due to insufficient returns), but recorded a break compliance rate of 74.77% (which, had the monitoring round been valid, would have triggered a band 3 pay supplement).
H, acting as a test claimant, brought a breach of contract claim before the High Court, which was dismissed. She successfully appealed to the Court of Appeal.
The main issues in the case were:
- What data should be used when the trust computes whether the 30-minute break was taken on at least 75% of occasions?
H argued that the trust should only use data actually submitted by the doctors on the rota. It was not fair to include data from those doctors absent or who failed to respond and presume that they would have had 30 minutes breaks on every shift and worked exactly the hours on the rota. H considered that including this data unfairly advantaged the trust as it artificially inflated the number of doctors getting the 30 minute break.
The trust argued that it was proper to include the data from the absent doctors and those doctors on the rota who failed to complete the timesheet. This was because it should be presumed that the doctors who failed to complete the timesheet had no issue with getting breaks and the hours they worked and other technical reasons relating to assessing the rota as a whole.
2. When considering whether a monitoring exercise was valid, the timesheets submitted must represent at least 75% of the duties worked over the monitoring process (a 75% Duty Return Rate). Was it correct that the trust should include shifts not worked due to sickness or annual leave as a nil return?
H pointed out this practice would make it impossible for a monitoring exercise to have a 100% Duty Return Rate even if all the doctors submitted a timesheet for every shift they worked (as the trust included as a nil return those shifts that it knows that the doctor would not work due to annual leave). This practice was therefore unfair as it artificially inflated the prospects of a monitoring exercise being non-compliant.
The trust argued that it was a fair practice because the object of the exercise was to decide whether the data captured was sufficiently large to be reliable. Where the data provided by the doctors falls below 75% of the overall number of shifts on the rota (due to failure to complete the timesheet, annual leave, sickness, etc…), the data becomes unreliable and the monitoring invalid.
Court of Appeal held
- The effect of the TCS is that where a post with a particular working pattern is correctly assessed to be non-compliant with the 30 minute break requirement, all the doctors working on that rota are entitled to be paid a band 3 supplement until such time as the post is correctly assessed as being compliant
- The 75% target for compliance with break must be calculated by the trust with reference to actual recorded data for each duty period worked during monitoring. It was reasonable for the Trust to presume that a doctor who worked the shift but failed to submit their timesheet was able to take the required breaks and worked in line with the rota. However, it was not reasonable to make the same presumption about doctors who did not work the hours due to sickness absence or annual leave
- The proper interpretation of H’s contract required that, unless an employer sets rates which are higher than 75%, and unless the rates are deemed to be unrepresentative, a monitoring round will be valid where both:
- at least 75% of all doctors in training in each rota or shift participating in the monitoring round have returned some recorded data
- data has been returned for at least 75% of the duty periods actually worked during the monitoring period (as opposed to duty periods expected to be worked based on the rota template) regardless of which doctors return the data. It was not correct to include shifts not worked due to sickness or annual leave as a nil return.
Based on the above, the first monitoring round should have returned a result of non-compliance with the break requirement, and therefore triggered the band 3 pay supplement.
Had the trust complied with the requirements set out above at paragraph 3, the second monitoring exercise would have been valid and should have returned a result of non-compliance with the natural break requirement, and therefore triggered the band 3 pay supplement.
What does this mean in practice for NHS trusts?
- Monitoring rounds must use actual recorded data for each duty period worked during the monitoring round, as opposed to the expected data shown on the rota or any artificially produced data (save where a doctor has actually worked a duty period and has failed to submit a return for that duty period)
- A monitoring round will be valid where at least 75% of all doctors in training in each rota or shift participating in the monitoring round have returned some recorded data, and data has been returned for at least 75% of the duty periods actually worked during the monitoring period (as opposed to duty periods expected to be worked based on the rota template)
- A breach of contract claim in the civil courts must be made within six years from the date of such breach. Therefore, if this decision is not successfully appealed to the Supreme Court, there is significant scope for it to open the door for junior doctors to seek compensation for non-compliant rotas worked over the last six years