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Monitoring breach - High Court test case for junior doctors

The BMA supported a test case in the High Court to clarify the law as to whether a trust has breached employment contracts by incorrectly applying monitoring rules to junior doctors' rotas. The BMA argued that this led to rota monitoring rounds being incorrectly assessed at that trust, potentially compromising patient safety and doctors' welfare.

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.

We believe the practices adopted by the trust are likely to have been commonplace across the NHS in those trusts or health boards who use Allocate (previously known as Zircadian) software for the purposes of monitoring.

The decision of the High Court was handed down at 10.15am on 19 April 2018. The High Court determined that the trust had not acted in breach of contract. Mrs Justice Simler did however grant one declaration sought by the BMA in respect of the interpretation of pay banding clauses in the 2002 junior doctors' contract. The BMA is disappointed in the judgment and sought Mrs Justice Simler's permission to appeal, which was refused. The BMA will now seek permission to appeal from the Court of Appeal.

The decision has consequences for junior doctors still employed on the 2002 junior doctors' contract and undergoing monitoring, and also have consequences for junior doctors previously employed on the 2002 junior doctors' contract at certain trusts or health boards whose rotas the BMA believes may not have been adequately monitored in the past.

 

Overview

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.

 

Background

We became aware of this issue through a case brought by a group of doctors in 2013 (Chamberlain and others v Cambridge and Peterborough NHS Foundation Trust). This concerned a full shift psychiatry rota that was monitored over a two-week period in March 2011 using the Allocate (then Zircadian) software.

The doctors in that case did not accept the result of the monitoring round, which showed their rota to be compliant, as this did not match their experience of the intensity of work during the two weeks of monitoring.

An employment tribunal found that certain nationally agreed documents the BMA relied on formed part of the doctors' contract, and that the way the trust had calculated the percentage for compliance with natural breaks - using substituted hypothetical data in addition to genuine data - had skewed the result and was in breach of contract. The doctors were each awarded back pay at Band 3.

 

Our test case

Over the last few years we have been working to establish the extent of the issues which arise from the way in which trusts or health boards interpret monitoring rules and use the Allocate software, and the best course of action to represent members' views on this in the most effective way, seeking both to protect patient safety and to safeguard the interests and wellbeing of current and future junior doctors by ensuring contracts are properly understood and applied correctly to prevent unsafe working practices.

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 Sarah Hallett, acting as a representative for all the doctors on the rota she worked from August 2013 to December 2013. It was a long wait for the case to come to trial, partly due to a certain amount of difficulty in obtaining the information we needed from her employer, and partly due to the length of time it takes to progress a case through the courts.

 

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 frequently asked questions document 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 which was rational and reasonable, and ensured the health and safety of doctors was protected. Using substituted data when assessing whether a monitoring round is valid or whether sufficient natural breaks have been taken does not meet this requirement, so the trust had breached implied terms of trust and confidence.

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.

The trust suggested that this method was fair because where a doctor did not return data, it should be assumed that they were able to take their natural breaks. We argued it isn't reasonable to assume this, and more importantly the unmonitored duties didn't just represent unreturned duties but also those not worked because annual leave or sick leave had been taken. We argued that if the correct calculation method had been used, the rota would have been found to be non-compliant at Band 3.

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

Mrs Justice Simler heard evidence and submissions over four days from 20 to 23 February 2018, and reserved her judgment. A 70 page judgment was handed down at 10.15am on 19 April 2018, reflecting the complexity of the issues before the court.

Unfortunately, although a declaration was granted relating to the operation of the 2002 junior doctors' contract in favour of Dr Hallett (to the effect that only a single valid monitoring round showing a Band 3 result is required for back pay at Band 3 to be awarded), Mrs Justice Simler found that the applicable rules relating to monitoring were those set out in the local documents relied on by the trust.

Where those documents lacked relevant details, the trust was able to exercise its discretion. It was agreed that the trust had a duty to act rationally, however Mrs Justice Simler considered that the assumptions made by the trust and the methodology it applied using the Allocate software on its default setting was not irrational.

Where the trust accepted an error had been made, Mrs Justice Simler found that it was reasonable not to re-calculate the result and that the exercise was void. In the circumstances it was concluded that the trust had not acted in breach of contract, and the claim was dismissed.

 

What does this mean for me?

Dr Hallett has sought permission from Mrs Justice Simler to appeal her decision, which has been refused. The BMA and Dr Hallett will now seek permission to appeal from the Court of Appeal.

Appeals can take some time to progress through the courts. Until there is a successful appeal, the result of the case will be binding on County Courts in England and Wales. Where individuals are concerned that the 6-year limitation period for bringing their claim in relation to these monitoring issues will have passed before the result of the appeal is known, it may be possible either to agree an extension to the limitation period with the defendant trust or health board, or to issue a claim and apply for it to be stayed pending the result of the appeal.

If your situation is one which relates to the issues where the BMA has been successful in obtaining declarations (for example, where a trust or health board assesses a monitoring round to be valid and at Band 3 but refuses to pay back until the result has been confirmed by re-monitoring) you should contact our BMA advisers.