Junior doctors’ rest breaks should be monitored using actual recorded data, confirms Court of Appeal

Junior doctors' breaks must be tracked with actual recorded data, not expected or substitute data

Summary

In the case of Hallett v Derby Hospitals NHS Foundation Trust (“the Trust”) [2019] EWCA, the Court of Appeal has held that an NHS Foundation Trust had not been entitled to use expected or substitute data, rather than actual recorded data, when carrying out a monitoring exercise to assess whether junior doctors were taking rest breaks required under their terms and conditions of service. This decision is likely to have significant cost consequences and changes the way NHS employers calculate rest breaks. It remains to be seen whether the Trust will seek leave to appeal the decision to the Supreme Court.

The facts

Dr. Hallett was employed by the Trust as a junior doctor. She was employed under a standard contract which was subject to the Terms and Conditions of Service for NHS Medical and Dental Staff (England) 2002 (“the Terms and Conditions”). The terms and conditions require junior doctors to take 30 minutes natural break after four hours of continuous duty. The Trust was required to monitor working patterns, hours and rest breaks through “robust local monitoring arrangements” to ensure that its junior doctors were able to take required rest breaks.

Where a monitoring exercise demonstrated that junior doctors had been unable to take a required rest break, they were contractually entitled to receive a band 3 supplement, worth 100% of their basic pay. Monitoring exercises are valid if they capture information from (a) 75% of doctors in training on the monitored rota (“the doctor return rate”) and (b) 75% of duties expected to be worked (“the duty return rate”).

The Trust used “Allocate” software (previously Zircadian) to monitor working hours, in the same way as many NHS Trusts. The software based its calculation on expected number of duties and added in data where it was missing.

This case concerned a period spent by Dr. Hallett on the Trust’s General Surgery F1 rota between 7 August 2013 and 3 December 2013. The Trust conducted two monitoring exercises between 8 -22 July 2013 (before she commenced employment) and 14-28 October 2013.

The two exercises concerned different groups of doctors and the second group included Dr. Hallett. The first monitoring exercise was considered to be valid but the second exercise did not capture information from 75% of duties expected to be worked (the duty return rate). Nevertheless, both monitoring exercises concluded that the rest break requirements had been met.

Dr. Hallet applied to the High Court for a declaration on how the rest break provisions in junior doctors’ employment contracts should be interpreted. She argued that the true contractual position was (a) at least 75% of all doctors on the rota or shift in the monitoring round must have recorded data for the “doctor return rate”; and (b) data must have been returned for at least 75% of all duty periods worked during the monitoring round for the purposes of the “duty return rate”. She claimed that the Trust’s failure to capture the duty return rate in this case was a breach of her contractual terms and conditions of service.

The High Court held that the Trust had discretion about how rest breaks were monitored and decided that the Trust had not acted irrationally or were in breach of Dr. Hallet’s contractual terms. Dr. Hallet appealed this decision.

The decision

Which documents were incorporated into the doctor’s contract of employment?

The Court of Appeal found that the Health Service Circulars 1998/240 and 2000/031 and the Department of Health’s “Junior Doctor’s Hours – Monitoring Guidance” document were incorporated into Dr. Hallett’s contract of employment.

Importantly, the court confirmed that, as a nationally agreed document approved by the Secretary of State, the Terms and Conditions of service could not be different depending on where the doctor worked. The court found that the question of what tests had to be satisfied for the doctor to be entitled to a pay supplement could not vary from Trust to Trust and how rest periods were monitored was not a matter of discretion for the Trust.

The rest break requirement

HSC 1998/240 provides that rest targets had to be met during at least 75% of rostered duty periods. The Court held that compliance with that requirement should have been calculated using actual recorded data for each duty period during the monitoring period, rather than expected data shown on the rota.

The court found that the Trust’s failure to do so was in breach of Dr. Hallet’s contractual Terms and Conditions of service. The only exception to this rule is where a doctor had been at work during a duty period but had failed to provide any data about their rest breaks. In these cases, the Trust is able to assume that a doctor had taken the required breaks during that duty period.

Duty return rate

The court held that the “duty return rate” should have been calculated using the actual recorded data for each duty cover period during the monitoring round, rather than expected or artificially produced data.

What does this mean for me?

This is an important decision for all NHS Employers in respect of how rest breaks for junior doctors should be calculated and will undoubtedly cause some concern. The Court of Appeal’s interpretation of the Terms and Conditions of Service for NHS Medical and Dental Staff is likely to cause some upheaval in respect of how junior doctors’ rest periods are monitored and the taking of natural breaks.

This judgment confirms that the approach taken by the Trust in this case – and the large number of NHS Trusts who also use the Allocate software to calculate rest periods and entitlement to receive the band 3 supplement was flawed and in breach of the Terms and Conditions of service; and that actual recorded data should have been used.

This decision potentially gives rise to claims for breach of contract arising from the failure to take into account actual recorded data when monitoring rest breaks which has resulted in additional pay supplements not being paid. 

Comment

We don’t yet know if this decision will be appealed further by the Trust to the Supreme Court. As soon as we know whether an appeal is, or may be, going ahead we will update you further.

We expect that this decision will result in further queries being raised on behalf of junior doctors by the British Medical Association in respect of how rest periods have been calculated previously and going forward. If you would like to discuss your organisation’s strategy and approach to monitoring and calculation of rest periods we would be happy to advise you further.

If you have any questions or would like to know more about our legal update, please contact Ian Pace, Principal Associate, on 0161 214 0667, or ian.pace@weightmans.com.

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