News - Success in national test case on the monitoring of safe working practices for junior doctors

Employment & Discrimination - Sarah Keogh

Judgment was handed down by the Court of Appeal this morning granting the appeal and a series of declarations in Hallett v Derby Hospitals NHS Foundation Trust [2019] EWCA Civ 1394. Sarah Keogh was led by John Cavanagh QC on behalf of the successful appellant, Dr Hallett, and a represented class of 20 other junior doctors, backed by the British Medical Association. The Secretary of State for Health was refused a late application to intervene in the proceedings.

Dr Hallett (Deputy Chair of the BMA’s Junior Doctor’s Committee) alleged that the way in which her employing trust calculated the results of monitoring rounds, designed to ensure that doctors were working safely and able to take natural breaks, was irrational and in breach of contract. The trust applied the default setting of software used widely across the NHS, which it was contended skewed the data in such a way that it disguised breaches of compliance with natural breaks requirements.

The Court of Appeal concluded that the trust had acted irrationally and was in breach of contract in the way it performed calculations as to the validity of monitoring rounds and as to compliance. The use of substitution of data (for example, assuming in its calculations that each duty period on the rota template which was not worked because a doctor was on annual leave should be counted as having been worked and as being compliant as regards natural breaks) was irrational, save where a doctor had actually worked but had failed to submit a record for that shift.

It was held that while two key Health Circulars and national monitoring guidance were not incorporated into the contract of employment, they were useful guides to interpretation.

Had the contract been interpreted correctly, the monitoring rounds which were the subject of the claim would have been calculated as being both valid and showing breach of compliance as regards natural breaks. Dr Hallett and her cohort were entitled to a Band 3 supplement to their pay as a result of the breach.

The result will require trusts still employing junior doctors under the 2002 Terms and Conditions of Service to ensure that they are monitoring in an appropriate manner, and has the potential to lead to claims across the UK for back payment of Band 3 supplements owed to junior doctors and former junior doctors whose working patterns are found to have been in breach of contractual safety requirements.

The trust is considering its position in relation to permission to appeal to the Supreme Court.

To read the full judgment, please click here.

Sarah Keogh was instructed by Capital Law.

To read the BBC article on this case, please click here.

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