Last updated:

Monitoring breach - victory in legal test case for junior doctors

UPDATE: On 30 September, the Court of Appeal declined Derby Hospitals NHS Foundation Trust request to appeal July’s decision to the Supreme Court.

The BMA has secured a Court of Appeal victory in the case of Hallett v Derby Hospitals NHS Foundation Trust, a test case brought by the BMA to clarify the law as to whether a trust had breached employment contracts by incorrectly applying monitoring rules to junior doctors' rotas.

In a judgement handed down at 10.30am on 30 July, the Court of Appeal found that the trust had breached Dr Hallett’s contract of employment and/or acted irrationally by assessing duty periods as compliant with natural breaks requirements by using expected data instead of actual recorded data. Specifically, it was wrong to treat a duty period as compliant if it was not worked at all due to an unassigned rota slot or a junior doctor being on annual leave, sick leave or study leave.

There was a small exception to this; where a doctor had worked a shift but had failed to complete their return. In those narrow circumstances, a trust is able to assume compliance with natural breaks. Junior doctors across the country know this is false, but it underlines the importance of completing monitoring returns, and for junior doctors on the 2016 contract to make an exception report every time they are unable to take a break at work. This will force trusts and health boards to address the problems we know exist, and improve rota designs, both for doctors and their patients

The Court also found that the trust had breached Dr Hallett's contract of employment and/or acted irrationally in adding in expected and/or artificially produced duties when calculating the duty return rate. A 75% doctor and duty return rate is required for a monitoring exercise to be valid. The trust had unlawfully taken account of duties it knew would not be worked - either as a result of an unassigned rota slot, or due to annual leave, sick leave or study leave - when assessing the duty return rate.

Throughout this case, the BMA has made it clear that it is vitally important for both patient and doctor safety that working hours and the ability to take breaks are properly monitored, rotas are compliant, and sanctions enforced where trusts or health boards have not ensured that there are safe working practices in place.

This judgment confirms that Derby Hospitals NHS Foundation Trust has been using commercial software that has underestimated the hard work, long hours and inadequate rest faced by junior doctors, for years. We believe the practices adopted by this trust are likely to have been commonplace across the NHS in other trusts or health boards that use Allocate (previously known as Zircadian) software for the purposes of monitoring.

The Trust may apply to appeal the Court of Appeal's decision to the Supreme Court and have until 9 August 2019 to do this.

 

What should members do?

If you are a BMA member we will support you in bringing forward a claim.

If you worked on a rota that was monitored using Allocate software in this way – with calculations for validity or compliance based on hypothetical, substituted data rather than actual data – you may have had your rota banded incorrectly and may have been underpaid.

This is more likely if you recall that you and your rota colleagues were frequently unable to take natural breaks in a post, and you declared this in a monitoring exercise, but the information was not picked up in the monitoring report. (Information may not get picked up in a monitoring report because breaks are declared to have passed by a small margin, and/or because annual leave or rota gaps caused the round to be declared invalid.)

You may also have been underpaid if your rota was correctly assessed at Band 3 through valid monitoring but your employer ignored the result, perhaps insisting a second repeat round was necessary to 'verify' it.

Unfortunately, such losses that were incurred as a result of an incorrect monitoring exercise that took place over six years ago will be statute barred, but if you experienced this within the last six years you may be able to make a claim for the pay you are owed.

Some individuals may have multiple claims against different employers. In light of this and the six-year limitation period, we will prioritise those whose claims are closest to being statute barred, namely rotas worked in 2013. For those who have monitoring data relating to work undertaken from 2014 onwards, we will acknowledge receipt and keep you regularly informed of progress.

New breaches of contract due to the incorrect use of banding may continue to occur where doctors in England are still working under the 2002 contract (for example doctors in England that are employed under lead employer arrangements), and in Wales and Northern Ireland, which continue to use the 2002 contract or equivalent. Doctors working in Scotland are unlikely to be impacted as a different software system is used.

The judgment in Hallett v Derby is binding in England and Wales, but in Northern Ireland we expect that this judgment would still have persuasive authority and we wouldn’t need a new test case in order to start bringing claims for breach of contract.

Once we have established whether you were affected and are eligible to make a claim, if there is scope to proceed to court action we will be able to support you.

There are over 50,000 junior doctors in England, Wales, Scotland and Northern Ireland, plus many thousands of people who have been junior doctors within the last six years. It is possible that a number of doctors may have valid claims for breach of contract.

For current or very recent rotas, it may also be possible to bring a claim in the employment tribunal for an unlawful deduction from wages. The time limit to bring a claim in the employment tribunal is much shorter (three months, subject to extensions of time for conciliation and where it is not practicable to bring a claim in time).

Once we have verified your eligibility and conducted our usual merits assessment we will help you to bring your claim.

 

How do I know if I'm eligible?

You will need to check your own records of monitoring data for each of your rotas from 2013 onwards. If you do not have these then you can use the template email we have created to contact your relevant medical staffing department(s) and ask for a copy. You will also need to have a copy of your duty roster showing exactly which shifts were worked on the rota during the monitoring period. If you do not have this, you would also need to ask for a copy.

When you have your monitoring data, check if the monitoring data used Allocate/Zircadian, then review this against the full duty roster to determine whether there were rota gaps (uncovered shifts due to leave/absence).  

Once you have this information please contact one of our advisers quoting your BMA membership number. If your employer does not respond to your request within a reasonable period (a month) then please contact us. You must currently be a member to access our support.

Members with potential claims relating to rotas worked in 2013 should contact us as soon as possible on 0300 123 1233 or via [email protected]

It is important to note that this issue is not inherent to the software itself, but the way data is entered into it and analysed with unmonitored shifts being substituted in.

 

Background

The BMA believed that a number of employers could be misinterpreting key provisions of the 2002 junior doctor contract. In particular, we were worried that they may be incorrectly applying monitoring and banding rules for junior doctors, both in the manner trusts or health boards using the Allocate software in a particular way are assessing monitoring rounds, and in the basic application of pay provisions once a monitoring round has been correctly assessed.

Our concerns are primarily about the technical method of how employers assess monitoring data to determine whether a monitoring round is valid, and if so, whether sufficient natural breaks have been taken by doctors on a particular rota, the result of which will determine whether the rota is at Band 3 as defined in the contract. We think that these methods may mean that unsafe working practices are not being detected, and may also result in such doctors not being paid properly.

Our test case

Over the last few years we have been working to prevent unsafe practice - which arises from the way in which trusts or health boards interpret monitoring rules and use the Allocate software - and seeking to protect both patient safety and the interests and wellbeing of current and future junior doctors.

On advice from specialist lawyers, we identified a very specific type of test case, supported by robust evidence, to have the strongest chance of establishing the correct interpretation of the contract in the High Court.

A suitable test case was brought by the deputy chair of JDC (junior doctors committee) Sarah Hallett, acting as a representative for all the doctors on the rota she worked from August 2013 to December 2013.

The issues in the test case

The starting point in the High Court test case was to establish what rules and provisions trusts or health boards are required to follow when they monitor rotas under the 2002 junior doctors contract.

We argued that a junior doctor's contract of employment incorporates not only the 2002 terms and conditions themselves, but also requirements set out in two health circulars (HSC 1998/240 and HSC 2000/031) and in nationally agreed monitoring guidance published by the Department of Health in 2000.

It's our position that if correctly interpreted, the relevant provisions in these documents require that:

  • Both 75% of doctors on the rota have to provide some monitoring data and data has to be returned for at least 75% of the duty periods actually worked during the monitoring exercise for it to be valid
  • Where natural breaks are not achieved during 75% of rostered duty periods, a rota is not compliant with the rules and all doctors working the rota are entitled to be paid at Band 3
  • These thresholds for validity and compliance should be assessed using actual data, not hypothetical data substituted in.

The trust's position was that it did not have to follow the health circulars or the national guidance, and that its own local guide to monitoring and document of frequently asked questions formed part of Dr Hallett's contract of employment instead. It argued that it had discretion to monitor in any way it chose and to assess the results of monitoring in any way it chose.

As an alternative, we argued that if the monitoring guidance and health circulars did not form part of the contract of employment, then the trust was still required to analyse the results of monitoring in a way that was rational and reasonable, and ensured the health and safety of doctors was protected.

There was also a dispute as to how the pay provisions should be applied once the result of a monitoring round had been established. The trust argued that it should not have to pay doctors at Band 3 until there had been two valid monitoring rounds with Band 3 results. We sought to establish that, where a rota is correctly assessed to be at Band 3, doctors working that rota are entitled to be paid at Band 3 straight away.

What happened

Dr Hallett was employed by Derby Teaching Hospitals NHS Foundation Trust from August 2013 to August 2014 as an F1. In August 2013, she was assigned to work a full shift pattern under the trust's general surgery F1 rota, alongside 20 other doctors.

Two monitoring rounds took place for this rota, which were the subject of the test case.

First monitoring round

A monitoring round took place, concluding that the rota was compliant with requirements for natural breaks at 75.89%. The method for establishing this result was detailed during the trial. First, the trust inputted into the software (on its default setting) the rota template for the full cycle of the rota. The template assumes that all duties will be worked, not taking into account things like leave being taken or rota gaps. This template produces an 'expected' weekly average number of duties of each shift type - because this is an average, it might not match the actual number of duties on the rota during the two-week monitoring period.

At the end of the monitoring round, the software compared the actual data returned by doctors for duties worked with the 'expected' number of duties for each shift type. Where the number of duties recorded was less than the 'expected' number, the software added a hypothetical duty period, called an 'unmonitored' duty period. Each unmonitored duty period was then counted as a duty in which natural breaks had been taken.

Second monitoring round

This time the issue was whether the monitoring round was valid. It was accepted by the trust that at least 75% of doctors on the rota provided monitoring data, but they disputed that data was returned for at least 75% of the duty periods actually worked during the monitoring exercise (putting it at 71.56%). This time the trust reached the conclusion that the rota wasn't compliant for natural breaks, however they ignored this result on the grounds that they believed the round was invalid. It was accepted in evidence by the trust that an error had been made and that if its calculations had been corrected the round would have been assessed as valid. However, the trust argued that because there had been an error, the result should be considered void in any event.

Applying the principle that validity should be assessed using actual data rather than hypothetical data, we argued that the 71.56% result was incorrect as it resulted from the trust relying on the 'expected' number of duties generated by the software and not the actual number. This method doesn't compare like with like, because the 'expected' duty periods would include any that were not worked due to annual leave and sick leave and, as was accepted by the trust, duty periods relating to an unassigned rota slot.

We argued that if the correct calculation method had been used, the rota would have been assessed as valid. As it was non-compliant even on the trust’s calculations, all the doctors on the rota should have been paid at Band 3.

The High Court's judgment

Hallett v Derby was not aimed at seeking financial recompense, but a series of declarations to establish the correct interpretation of the contract.

In summary, we sought declarations that:

  • The terms of Dr Hallett's contract of employment, and that of all junior doctors at the trust, included rules set out in the 2002 junior doctors' contract and in nationally agreed health circulars and Department of Health monitoring guidance.
  • Two separate monitoring rounds conducted by the trust during 2013 were assessed in a way which was in breach of those rules, alternatively was irrational and unreasonable
  • Dr Hallett's rota should have been correctly assessed at Band 3
  • The failure correctly to analyse the monitoring rounds had the potential to affect the future working conditions and safety of the doctors on the rota and the patients they treated
  • There would be entitlement to back pay at Band 3 following a single, valid monitoring round showing a Band 3 result
  • All the doctors in the rota were, in principle, entitled to back pay at Band 3

The Court of Appeal's decision

While the Court of Appeal did not agree with the High Court that the local documents were incorporated into Dr Hallett’s contract of employment, the scope of those documents was limited to practical or physical arrangements for collecting data.

Equally, the Court of Appeal did not find that the Health Circulars and Monitoring Guidance were incorporated, but it did find that these were an aide to interpretation of Dr Hallett’s contract and that the trust’s method of calculating compliance and validity by reference to expected data was in breach of contract and/or irrational.  In this way the effect of those documents being incorporated into the contract was achieved.

In particular, the Court of Appeal found the trust’s practice of assuming a duty period had been compliant with natural breaks where no return had been made, either as a result of annual leave, sick leave, study leave or an unassigned slot in the rota, was in breach of contract and/ or irrational.

Further, the trust’s practise of using expected data (i.e. the rota duties expected to be worked not accounting for any sick leave, study leave, annual leave or an unassigned slots) in calculating the duty return rate was in breach of contract and/ or irrational. In assessing the duty return rate the trust should have taken account of only the duties actually worked.

As a result of the above finding by the Court of Appeal, those doctors who worked with Dr Hallett during August 2013 to December 2013 are able seek payment due to them at Band 3 and are encouraged to contact the BMA for support with these claims.

As a Court of Appeal decision this will be binding on all lower courts in England and Wales, including the High Court and County Court.