NHS national terms and conditions of service require NHS trusts to carry out monitoring of junior doctors' working hours and rest breaks to ensure that their pay banding is correct. Junior doctors are required to participate in exercises which monitor their working hours for two weeks twice a year. If the monitoring shows that the working patterns of the junior doctors are not compliant with the rota on which their banding is based, for example because they are working excessive hours or not getting the required breaks, the doctors on that rota are entitled to be "rebanded" onto a higher band (worth up to 100% of basic pay) until a further monitoring round shows the rota to be compliant.
For a monitoring round to be valid at least 75% of the doctors on the rota must submit the timesheets and the timesheets must cover at least 75% of all duties worked over the monitoring period.
In practice, monitoring information is often incomplete, either due to doctors submitting incomplete information or being absent. Standard practice in the NHS is to deal with missing data by supplementing it with expected data for relevant shifts.
A junior doctor employed by Derby Hospitals NHS Foundation Trust (which followed this standard monitoring practice), acting as a test claimant, successfully challenged this methodology. She argued that the monitoring methodology produced skewed results and this amounted to a breach of contract. Overturning the High Court's decision, the Court of Appeal agreed with her, and made several declarations, including:
- Data must be returned for at least 75% of the shifts actually worked during the monitoring period (as opposed to shifts expected to be worked based on the rota template) for the monitoring to be valid.
- Monitoring results must be calculated using actual recorded data for each shift worked during one monitoring round, as opposed to the expected data shown on the rota for each shift during the monitoring round or any artificially produced data. The only exception to this is where a doctor has actually worked a shift and has failed to submit a return for that shift.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This is a significant decision, which requires Trusts who use flawed methodology to take steps to correct it. This will require changes to software programmes currently used and employers are advised to discuss this with their system providers. Use of expected data tends to improve rota compliance. Its absence is likely to mean that more rotas will be non-compliant, leading to potential for claims for back pay and the requirement for NHS bodies to supplement junior doctors' pay. Employers should also consider updating any internal policies on monitoring to reflect this outcome and encourage compliance in the monitoring process in order to meet the 75% threshold. We are currently waiting to see if the Trust in this case will seek permission to appeal to the Supreme Court.
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