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Trust’s monitoring arrangements did not breach junior doctors’ contracts of employment

Hallett v Derby Hospitals NHS Foundation Trust

In this significant decision for NHS employers nationally, the High Court has reviewed the approach taken by numerous NHS Trusts to the monitoring of junior doctor rotas.

Background

Dr Hallett was one of a group of junior doctors employed by the Trust on the General Surgery F1 rota between 7 August 2013 and 3 December 2013. The doctors were employed on the Trust’s Principal Terms of Contract of Employment (F1) (the Derby Contract), which follows the model contract used by all trusts and incorporates provisions of the national Terms and Conditions of Service for NHS Medical and Dental Staff (England) 2002 (the TCS).

Clause 6(a) of the Derby Contract provides that the Trust has a contractual obligation “to monitor junior doctors’ New Deal compliance and the application of the banding system through robust local monitoring arrangements supported by national guidance”. Neither the Derby Contract nor the TCS set out any details of the system of monitoring that must be undertaken, or how the monitoring is to be done.

Paragraph 22 of the TCS provides that a Band 3 pay supplement will be payable in respect of posts which do not comply with relevant controls on hours and natural rest breaks and referred to three guidance documents published by DH.

The Trust used Allocate software to manage its monitoring exercises.

In the relevant period, the Trust carried out two monitoring exercises, MR1 which took place prior to the Claimant joining the rota, and MR2 which took place whilst the Claimant worked on the rota. Monitoring round MR1 was a valid round which found the rota to be compliant on natural rest breaks. MR2 was an invalid round because of insufficient returns, but returned a natural rest break compliance rate of 74.77% which would have triggered a Band 3 uplift had the exercise been valid.

The Trust operated a local process whereby monitoring exercises returning a valid non-compliant result would be re-monitored within six weeks. Only where the second monitoring exercise also demonstrated a non-compliant rota would the Trust uplift the banding supplement for the doctors working on that rota. This was referred to as the “two strikes” approach.

The junior doctors sought a declaration from the High Court that that the three DH guidance documents were expressly incorporated into their contracts of employment and that local variations to monitoring were therefore in breach of contract. Further, they argued that the methods used by the Trust to substitute ‘artificial’ data, using the Allocate software, were not consistent with the contractual monitoring requirements and/or were irrational because they skewed the results in favour of compliance. Finally, they sought a declaration that the “two strikes” approach adopted by the Trust was not compliant with the contractual banding provisions.

The High Court decision

The High Court dismissed Dr Hallett’s arguments and declined to make a declaration that the junior doctors had a contractual entitlement to the monitoring arrangements set out in the Health Service Circulars and the DH Monitoring Guidance. The High Court found that the Derby Contract was clear that the Trust was contractually obliged to conduct monitoring through robust local processes and that those robust local arrangements were to be supported by national guidance. The Trust had complied with its obligation to put into place local arrangements, namely the Hours Monitoring Guide and FAQs. The DH guidance was simply that and should not be incorporated into the junior doctors’ contracts of employment.

The High Court went on to find that the Trust’s local monitoring arrangements were not irrational.  The Allocate software is widely used across the NHS, and substitutes expected data where data is missing. The Court reflected that any approach to the substitution of data has limitations or potential drawbacks and there is no perfect or objectively correct solution. It was noted that the substitution of data for “missing” shifts on the assumption of full compliance might skew the assessment towards compliance.  However, adopting the approach suggested by the Claimant would skew the assessment in favour of non-compliance. Accordingly, it could not be concluded that the Trust’s approach was irrational.

The High Court therefore declined to make almost all the declarations sought by the junior doctors. However, whilst it was not in fact relevant in Dr Hallett’s case because the monitoring exercise MR2 had been deemed invalid, the High Court did make one declaration sought, which was to confirm that the “two strikes” approach adopted by the Trust was not consistent with the contractual banding provisions. Accordingly, junior doctors working on a rota which is found to be non-compliant in a valid monitoring exercise are entitled to an enhanced banding supplement immediately (which could be backdated to the start date of the rota or to the latest compliant monitoring exercise).

What to take away

This decision will be welcomed by Trusts, a number of which might have faced potentially significant claims for breach of contract if the High Court had found that the use of Allocate software leads to outcomes that are in breach of their contractual obligations.

This case is a reminder, however, that banding claims continue to be a real issue in the NHS. Trusts should ensure that their contractual clauses and local arrangements are clear/enforced and that local monitoring processes are robust and well-documented.  They should also be familiar with the relevant DH guidance.

Where Trusts use the “two strike” approach routinely in respect of banding supplements, legal advice should be sought on the potential exposure to legal claims.

For further information on how this issue might affect your organisation, please contact Victoria Watson, Bridget Prosser or Ron Simms.

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