The Hallett v Derby Hospitals NHS Foundation Trust case

On 30 July 2019 the BMA secured a Court of Appeal victory in the case of Hallett v Derby Hospitals NHS Foundation Trust, a test case brought by the BMA – on behalf of the BMA’s Junior Doctor Committee - to clarify the law as to whether a trust had breached employment contracts by incorrectly applying monitoring rules to junior doctors' rotas.

This judgment confirmed that Derby Hospitals NHS Foundation Trust had used commercial software that had 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 compliance with natural break entitlement.

Background

Dr Sarah 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.

The first monitoring round concluded that the rota was compliant with requirements for natural breaks at 75.89%. The method used by the Trust to reach this result was to input into its monitoring 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 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 i.e. the software assumed compliance with natural breaks

The second monitoring round concluded that the monitoring exercise was invalid and not compliant with natural breaks. While it was accepted by Derby that at least 75% of doctors on the rota provided monitoring data, they disputed that data was returned for at least 75% of the duty periods worked during the monitoring exercise – they instead put it at 71.56%. However, as a result of the round being found to be invalid they ignored the result of non-compliance with natural breaks.

Applying the principle that validity should be assessed using actual data rather than hypothetical data, 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.

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 own calculations, all the doctors on the rota should have been paid at Band 3.

The BMA became aware that the practises highlighted in Dr Hallett’s scenario was not an isolated incident and it believed that the way in which trusts or health boards were interpreting monitoring rules and using the Allocate software were incorrect. Following advice from specialist lawyers the BMA sought to establish the correct interpretation of the monitoring rules as set out in the 2002 junior doctor contract and set a legal precedent for this.

To do this, a test case – Dr Hallett’s case – was brought to the High Court. In this, the BMA 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.

In doing so neither the BMA nor Dr Hallett were seeking financial recompense, but a series of declarations to establish the correct interpretation of the contract, namely 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.

Unfortunately the BMA’s case in the High Court was unsuccessful. As a result, the BMA appealed the High Court’s decision.

The Court of Appeal Judgment

In a reversal of the High Court’s judgment, on 30 July 2019, the Court of Appeal established a binding precedent in England and Wales in favour of the BMA regarding how monitoring of junior doctors on the 2002 contract should be done.

The Court ruled that Derby Hospitals NHS Foundation 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.

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 to establish if a monitoring round was valid. A 75% doctor and duty return rate is required for a monitoring exercise to be valid, anything less that this was not considered to be a valid representation of the rota as a whole. 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.

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.

On 30 September 2019, the Supreme Court refused Derby Hospitals NHS Foundation Trust application to appeal the Court of Appeal’s decision.

Why it mattered

For junior doctors working on the 2002 contract, banding played a vital role in ensuring trusts or health boards did not run unsafe and fatiguing rotas. The widespread use and incorrect application of monitoring software exposed by the Hallett v Derby case, resulted in trusts failing to pick up issues with working conditions, which potentially led to the weakening of the protections afforded to junior doctors.

In addition to this case the BMA has also supported a number of successful claims for breach of contract by junior doctors whose monitoring rounds were incorrectly assessed as either compliant or invalid as a result of the same or similar practices held to be in breach or of contract and/or irrational in the test case.

These protections were put in place because junior doctors working long hours with no provision for even a short break will be left exhausted. 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.

While improvements to safety and rest periods were made in the 2016 junior doctor contract, the issue of breaks remains of paramount importance which is why those on the 2016 contract should make an exception report (link) every time they are unable to take a break at work. The BMA has also successfully campaigned for improvements to address fatigue and its impact on doctors. In 2019 as a result of this a £10m fund was announced in England to develop and improving rest and sleep facilities for on-call staff.

Do you need support?

If you are a BMA member and believe you have a claim similar to this case, then please contact us on 0300 123 1233 to discuss your case further. The legal deadline within which a junior doctor would have to make the claim to a court is 6 years from the date of either the last day of the Monitoring Round or the date of the Report.