Court of Appeal provides important clarification on calculating rest breaks for junior doctors

An NHS Trust has been refused permission to appeal against a decision from the Court of Appeal with potentially far-reaching implications for the NHS.

A group of 21 junior doctors, led by Dr Hallett and supported by the British Medical Association (BMA), successfully argued that the approach taken by Derby Hospitals NHS Foundation Trust (the Trust) when calculating rest breaks for junior doctors was flawed and resulted in them working longer than they should have done, without receiving the correct pay.

Background

In the NHS, junior doctors engaged under the Terms and Conditions of Service for NHS Medical and Dental Staff (England) 2002 (version 10) (the NHS Terms and Conditions) are contractually entitled to a 30 minute break after four hours' continuous work. There are financial penalties for NHS Trusts that fail to comply with this.

As is standard practice across the NHS, the NHS Terms and Conditions were incorporated into the Trust’s contracts of employment for junior doctors. Therefore the junior doctor claimants were contractually entitled to these rest breaks. 

To ensure compliance, the Trust carried out monitoring over a two-week period, twice a year, using commercial software. If a rota was shown to be non-compliant, all doctors on that rota would be entitled to receive double pay, back-dated to three months after the previous compliant monitoring round. This would apply until a further monitoring round could show the rota to be compliant.

In practice, monitoring information was often incomplete. The Trust, in line with standard practice in the NHS, dealt with missing data by supplementing it with expected data from advance rotas, rather than the actual recorded shift patterns.

The claim

The claim centred on whether the Trust complied with the requirement to allow the junior doctors to take their rest breaks during a General Surgery F1 rota between 7 August and 3 December 2013.

Neither the NHS Terms and Conditions nor the Trust’s individual contracts of employment explained how monitoring should be conducted, what constituted valid monitoring, or under what criteria non-compliance would be established.

It was alleged that:

• Certain parts of three Department of Health (DOH) documents that specifically prescribed how Trusts should address monitoring and pay uplifts were incorporated into junior doctors’ contracts of employment, namely Health Service circular 1998/240, Health Service Circular 2000/031 and a Department of Health publication entitled ‘Junior Doctors' Hours - Monitoring Guidance’.
• As the Trust had failed to comply with the monitoring requirements in the DOH documents, this amounted to a breach of contract.
• The Trust’s approach skewed the data in such a way that it disguised breaches of compliance and the doctors were entitled to back-dated double pay for the duration of the rota in question.

Court of Appeal decision

The Court of Appeal held that the DOH documents were incorporated within the doctors’ contracts of employment and therefore the approach to monitoring as set out in the DOH documents should have been applied. The Court concluded the Trust’s approach “was both in breach of the contract on its proper interpretation and irrational".

The Court of Appeal declared that, for monitoring to be compliant:

• “The assessment of natural breaks compliance should have been calculated using actual recorded data for each duty period during the monitoring round as opposed to the expected data shown on the rota for each duty period during the monitoring round, subject only to the proviso that where a doctor has been at work during a duty period but has failed to submit data about rest breaks, the defendant [the Trust] is entitled to assume that the doctor has taken the required rest breaks during that duty period” (paragraph 78 of the Judgment).
• Monitoring results must be “calculated using actual recorded data for each duty period during the monitoring round, as opposed to the expected data shown on the rota for each duty period during the monitoring round of any artificially produced data” (paragraph 83 of the judgment).

The Trust recently sought leave to appeal to the Supreme Court but on 9 April 2020, the BMA announced that this has been refused, signalling the end of the Trust’s ability to challenge the decision.

Comment

This case is of national significance as this methodology for calculating working time is widely used in the NHS.

This decision could impact on other NHS Trusts as their approach to calculating rest breaks may now be challenged. At the Court of Appeal, Lord Justice Bean acknowledged that the wider cost to the NHS, as a result of this case, is "potentially substantial".

Looking ahead, as the healthcare sector begins to ‘return to normal’ following the outbreak of COVID-19, we recommend that NHS Trusts now assess whether their approach to calculating rest break entitlement could be challenged, and consider whether any changes are appropriate.