Junior doctors and natural breaks

A High Court has endorsed a NHS Trust’s monitoring of junior doctors and the taking of natural breaks. Nichola Evans considers the implications of the ruling.

The High Court has handed down judgment in a test case where the claimant, Dr Hallett, supported by the BMA, brought proceedings against Derby Hospitals NHS Foundation Trust (the Trust) in respect of its contractual obligation for monitoring junior doctors and whether junior doctors could take their natural breaks. Our client, the Trust had used software to monitor compliance provided by Allocate Software PLC (formerly Zircadian). The claimant alleged that the use of the software led to outcomes that formed a breach of contract. Mrs Justice Simler declined to grant the relief sought by the claimant and concluded that the Trust had complied with its contractual duties.

The judgment is significant not only to the Trust but to the NHS generally since approximately half of the Trusts in the country use Allocate Software. Had the claimant succeeded then the claimant and her cohort of junior doctors could have claimed circa £250,000 in supplementary pay for an eight month period. Clearly the cost to both the Trust and the wider NHS would have been in the millions had the claimant been successful.

In this note we look at the challenges made, the Trust’s response and what the judgment says.

The facts

Dr Hallett was a junior doctor at the Trust and between 7 August 2013 and 3 December 2013 was on the General Surgery F1 rota. The rota consisted of 22 slots rotating over a four month working pattern.

The case concerned two monitoring rounds. The first took place between 8 and 22 July 2013 (MR1) and the second between 14 and 28 October 2013 (MR2).  Whilst the first monitoring round took place before Dr Hallett’s employment commenced with the Trust had it not been compliant this would have had an impact on what she would have been paid.

The Trust had a contract with Allocate whereby Allocate provided the 'Junior Doctor Portal'. The system collects and goes on to analyse the data collected. Once a Trust sets up a monitoring exercise the junior doctors taking part in the exercise are sent emails with login details. Three days before the exercise commences the doctors are sent a further email setting out the monitoring period and the duties to be monitored. If a doctor does not record his or her data further prompts are sent throughout the monitoring period. Finally at the end of the exercise the software allows the doctors a number of days to finalise their records. After that doctors are locked out of the system.

In the first monitoring round of the 22 full time doctors rostered, two did not complete any records and the rest completed between nine and 14 record cards. This produced a doctor return rate of 20/22 x 100 = 90.91%.

On the duty return rate there were 162 worked duties and five study leave duties out of 218 expected duties. The Trust divided the number of duty returns by the number of expected duties to get to the duty return rate (MR1 produced 167/218 x 100 = 76.61%).

MR1 was therefore a valid exercise.

Looking at natural breaks, the Trust calculated this by looking at the monitored, unmonitored and expected duties. There were:

• 162 worked duties
• 61 expected but unmonitored duties
• one additional unmonitored duty – leading to a total of 62 unmonitored duties

Added together this equated to 224 duties. 54 were recorded as non-compliant as regards natural breaks. 170 were treated as compliant. The calculation became 170/224 x 100 = 75.89%. This again was judged by the Trust to be compliant.

In terms of MR2 the doctor return rate was 95.24%. The duty return rate was 156/218 x 100 = 71.56%. The exercise was treated as not valid.

The natural breaks calculation was produced at 163/218 x 100 = 74.77%. This would have been a non-compliant result had the exercise been valid.

The challenge by Dr Hallett

Both Dr Hallett and the BMA were critical of the approach taken by the Trust in monitoring and alleged that it breached the contractual framework. The challenge followed previous cases in the Employment Tribunal and also in banding appeals against other Trusts.

Dr Hallett and the BMA argued that the contractual position was:

• 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
• 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'.

The BMA’s view was that this meant that only the actual data reported by junior doctors should be included in any calculation regarding natural breaks (although they thought that hours data could be substituted). So for instance the BMA objected to the Trust’s practice of working into the figure presumed breaks on duties which were worked but where data was not recorded by that individual doctor. In terms of the natural breaks calculation the BMA argued that the Trust should not use expected duties data as part of this calculation. They argued that if their approach was taken Dr Hallett and her cohort would have been entitled to a Band 3 payment.

The Contractual Framework

The court asked itself the following question: whether and if so, to what extent, the Derby contract incorporates as enforceable contractual terms the provisions of other documents relied on by each side?

The starting point was the contract used by the Trust which is a model contract used by all Trusts.

Dr Hallett and the BMA argued that the contract incorporated Health Service Circular 1998/240 ('HSC 98/240'0, Health Service Circular 2000/031 (HSC 00/31) and Junior Doctors’ Hours Monitoring Guidance. It was suggested that these documents prescribed how the monitoring, natural break monitoring and pay uplift should be dealt with by the Trust.

The Trust said that the HSCs were mere guidance and had not been incorporated, that the Trust had incorporated into the contract local guidance documents and in addition the Trust was under an implied term of trust and confidence and a duty to act rationally.

The judgment

In a lengthy judgment Mrs Justice Simler considers in some detail what was incorporated into the contract. In terms of the HSCs she says:

“I do not consider that the provisions of the DH documents relied on by the claimant are apt for incorporation. HSC 98/240 expressly states that it provides “guidelines” for Trusts (paragraph 1).  It characterises the document as providing agreed “national guidance” (paragraph 2) on certain topics, (though not on the methodology or arrangements for monitoring).  At paragraph 3 it states that its purpose is to “encourage” a consistent approach across NHS employers. The language of “guidelines”, “national guidance” and “encourage” indicate that the content is aspirational rather than contractual.”

She further found that the documentation did not evidence an intention on the part of the parties to incorporate the documentation.

She went on to say:

“Furthermore, the wording of HSC 00/031 that describes the DH Monitoring Guidance reflects the difference between it and contractual obligations found elsewhere by describing the DH Monitoring Guidance as containing “key principles and detailed arrangements” on the one hand, in contrast to the “contractual obligations” on both NHS employers and junior doctors in respect of “robust local monitoring arrangements” on the other. The contractual obligation referred to at paragraph 4, a mutual obligation on employers and on junior doctors) is to monitor and cooperate with monitoring “through robust local monitoring arrangements supported by national guidance”.

The “expectation” therefore was that “systems will be determined, developed and operated locally”.

She identified that “DH Monitoring Guidance is silent as to whether or not the use of substituted data is permissible”.

In terms of the local monitoring arrangements the Judge identified these as the Hours Monitoring Guide and FAQ.

The practical effect of this was:

“i) The claimant was to work a ‘Full Shift’ work pattern (clause 1 of the Derby contract).  A ‘Full Shift’ is defined by paragraph 19c of the TCS and is subject to the controls on hours stipulated in paragraph 20c of the TCS.

ii) The claimant was entitled to a base salary of £22,636 (clause 4 of the Derby contract and paragraph 21a of the TCS)…. 

iii) However, if the junior doctors on the claimant’s rota were not having ‘natural breaks’ of at least 30 minutes’ continuous rest after approximately 4 hours’ continuous duty, the claimant would be entitled to be paid under Band 3...

iv) The defendant was contractually obliged to ensure that controls on hours of duty were met and to keep working arrangements under review..

v) The defendant was contractually obliged to monitor New Deal compliance and the application of the banding system through robust local monitoring arrangements supported by national guidance….  To that end:

vi) the defendant was required to collect and analyse “sufficient” data for it to be able to assess New Deal compliance...

vii) A monitoring exercise would only be considered valid where both the doctor and duty return rates were at least 75% (the Hours Monitoring Guide and the FAQ).

viii) These assessments could incorporate up to 25% of substituted data in respect of periods of annual leave, study leave or any shifts not recorded by submitted returns (the FAQ).

ix) The  defendant was required to carry out a monitoring exercise at least twice a year for a minimum of two weeks each time (the Hours Monitoring Guide).

x) The junior doctors (including the claimant) were contractually obliged to cooperate with the defendant’s local monitoring arrangements (clause 6(a) of the Derby contract and the Hours Monitoring Guide).  Specifically, that included: an obligation to record and provide monitoring data when reasonably requested to do so (clause 6(c) of the Derby contract); and an obligation to complete duty recording as accurately as possible, and in line with the other requirements stated in the Hours Monitoring Guide.

xi) The junior doctors were contractually required to work together and with the defendant to identify appropriate working arrangements and to comply with reasonable changes following discussions (paragraph 20h of the TCS; clause 6(e) of the Derby contract; the Hours Monitoring Guide).”

The Judge rejected the argument put forward by Dr Hallett that the Trust had acted irrationally in using substituted or expected data. She said:

“While I accept that there may be a number of different methodologies for assessing validity and compliance of monitoring data, and that the software used could be set-up to accommodate different approaches, that is not sufficient to establish the claimant’s case.”

Further:

 “…the BMA’s preferred methodology “involves an assumption in the way that any approach would do that lacks perfect data”…the true position is that any monitoring exercise involving duties for which returns are not submitted necessitates the use of assumptions of one sort or another.  Any approach has limitations or potential drawbacks, and there is, in reality, no perfect or objectively correct solution.  Rather, there is a choice to be made by Trusts between a number of potential but imperfect options, and it a question of judgment or evaluation as to whether the merits and demerits of one approach outweigh those of another.

Furthermore, it is accepted by the claimant and the BMA that substituting missing data is appropriate in the case of hours monitoring.  In other words, expected data can legitimately be used for some monitoring purposes. It seems to me in the circumstances, that it is not unreasonable for the Defendant to conclude that applying a methodology that permits substitution when monitoring hours but not when monitoring natural breaks is an unfairly inconsistent approach. It is significant that the DH Monitoring Guidance recognises that junior doctors’ failures to supply monitoring data can have an adverse effect on their pay banding (see paragraph 23, and to similar effect, HSC 00/031). This indicates an expectation that in the event of non-returns, the analysis would need to make use of expected data instead.” 

The Judge went on to conclude that the Trust was therefore entitled to reach the conclusions it did on MR1 and MR2. The court noted that there is a right to back-dated pay at the higher level if it was shown that the particular post belongs to a higher band rating as a result of a valid monitoring round. The claim therefore failed and was dismissed.

The claimant asked for permission to appeal from the trial judge but this was refused.

Going forward

The judgment endorses the approach taken by the Trust (and the large number of Trusts around the country who use the Allocate software and the algorithms). The judgment also gives guidance as to which documents are to be considered contractual documents and which contain mere guidance. In this case the Trust had robust local monitoring arrangements which the Judge found could not be challenged. The judgment also found that no challenge could be made in the light of the contractual framework to the use of substituted data.

We understand that a number of Trusts around the country are receiving FOI requests and challenges. This judgment gives a very useful summary of what will be regarded as the contractual framework and what is a reasonable approach to the collection and analysis of data.

Nichola Evans is a partner at Browne Jacobson. She can be contacted on 0330 045 2124 or This email address is being protected from spambots. You need JavaScript enabled to view it..