2 August 2019
In a test case supported by the BMA, the Court of Appeal has ruled that Derby Hospitals NHS Foundation Trust breached a junior doctor’s contract by failing to carry out rota checks correctly.
The case, which is expected to have far-reaching implications for the NHS, examined claims that commercial software — used by Derby and many other trusts and health boards — had for years underestimated the hours of many junior doctors and meant they received inadequate rest.
The case was brought by BMA junior doctors committee (JDC) chairwoman Sarah Hallett on behalf of 20 other doctors and relates to a period in 2013 during a general surgery rotation in her first foundation year.
Dr Hallett said that she was not seeking financial compensation. She tweeted: “It should not have needed to escalate to this level to confirm the importance of accurately assessing if junior doctors are getting breaks.”
In overturning an April 2018 High Court ruling in favour of the Trust, the Appeal Court found that the Trust had breached Dr Hallett’s contract and “acted irrationally” by inputting “expected” rather than “actual” data into the software to assess whether her duty periods were contract compliant.
According to the BMA, this meant that 20 trainees had their rotas banded incorrectly and were therefore underpaid. Trainees who have suffered financial loss as a result of incorrect rota checks in the past six years may be able to make a claim for pay they are owed.
It has been reported that the trainees may be owed as much as £250,000 with Lord Justice Bean agreeing in the Appeal Court that the wider cost to the NHS is “potentially substantial”.
See https://www.bma.org.uk/collective-voice/influence/key-negotiations/terms-and-conditions/high-court-test-case-for-monitoring-breach for more details about potential action by those affected.
The present JDC chairman Jeeves Wijesuriya said: “For those junior doctors on the 2002 contract, banding plays a vital role in ensuring trusts or health boards do not run overly fatiguing or unsafe rotas. Yet the widespread use and incorrect application of monitoring software resulted in trusts failing to pick up issues with working conditions, and potentially weakening the protections afforded to junior doctors in their contracts”.
The Department of Health said it was disappointed with the ruling and would support Derby Hospitals' next steps.