In the judgement handed down 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.
On 30 September, the Court of Appeal declined Derby Hospitals NHS Foundation Trust request to appeal July’s decision to the Supreme Court.
The case was the result of the BMA believing 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.
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.