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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hallett v Derby Hospitals NHS Foundation Trust [2018] EWHC 796 (QB) (19 April 2018)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/796.html
Cite as: [2018] WLR(D) 238, [2018] EWHC 796 (QB), 166 BMLR 11, [2018] 3 All ER 895, [2018] Med LR 451, (2019) 166 BMLR 112, (2019) 166 BMLR 11
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| DR SARAH HALLETT |
Claimant |
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| - and - |
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| DERBY HOSPITALS NHS FOUNDATION TRUST |
Defendant |
____________________
Mr Richard Leiper QC & Mr Joseph Barrett (instructed by Browne Jacobson) for the Defendant
Hearing dates: 20, 21, 22 & 23 February 2018
____________________
Crown Copyright ©
- This case (which is in substance a test case supported by the British Medical Association ('BMA')) raises a question of some importance concerning the extent to which the Defendant (an NHS Foundation Trust) complied with its contractual obligation to monitor whether junior doctors employed by it take their 30 minute natural breaks after approximately 4 hours' continuous duty. There are financial incentives (or penalties) for NHS Trusts to secure compliance with rest break requirements and other controls on hours and intensity of working: where valid monitoring demonstrates non-compliance junior doctors are entitled to a supplement to their pay (known as a Band 3 supplement), which is worth 100% of basic pay.
- The proceedings are brought by the Claimant, Dr Hallett, who was at the material time a junior doctor, and who is now Deputy Chair of the BMA's Junior Doctor Committee, on her own behalf and as a representative of her cohort of junior doctors on the Defendant's General Surgery F1 rota in 2013. They concern the true interpretation of certain provisions of the contract of employment between the Claimant and the Defendant relating to the monitoring of junior doctors' working hours and natural breaks, and consequential potential pay banding uplift decisions.
- The claim is for declaratory relief only at this stage, and concerns a period spent by the Claimant on the General Surgery F1 rota between 7 August 2013 and 3 December 2013. That it was an F1 rota means this was the Claimant's first 'foundation' year after medical school. The General Surgery F1 rota consisted of 22 posts or slots, which rotated in a four-month working pattern. Two particular monitoring exercises (known as monitoring rounds) are in issue. The first was conducted between 8 and 22 July 2013 and is referred to as "MR1" and predates the Claimant's employment. The second was conducted between 14 and 28 October 2013 and is referred to as "MR2". The two exercises concerned different groups of doctors. The first group was posted in General Surgery between April and early August 2013. The second group was posted in General Surgery between 7 August and 3 December 2013 and included the Claimant.
- More generally, however, this case is said to be a test case of significance across the whole NHS, because the way in which the Defendant has interpreted and applied its obligations to monitor compliance with the contractual provisions relating to natural breaks is consistent with the way NHS Trusts have behaved across many areas of England and Wales, at least in part because many of them monitor compliance by using commercially available software. The software used by the Defendant formerly had the trade name 'Zircadian', and is now known as 'Allocate'. Software called DRS, provided by a different company, was referred to in oral evidence at trial for the first time, but, absent reliable evidence concerning this software, I am unable to make any findings about its similarities or differences in comparison with Allocate.
- The Claimant contends that the use of Allocate software leads to outcomes that are in breach of the Defendant's contractual obligations, and if her claim is established, and financial losses are successfully claimed as a consequence, the cost to the Defendant could be around £250,000 in supplementary pay for the Claimant's group of junior doctors over an eight month period. The cost more generally, for both the Defendant and the NHS as a whole, is potentially significant.
- The claim arises because MR2 showed a compliance rate of 74.77% which, if the monitoring exercise was validly conducted, would trigger a Band 3 uplift in salary that is due when compliance is by any margin below 75%. The Claimant says that on her construction of the contract MR2 was validly conducted and binds the Defendant. The Defendant says that on its construction of the contract MR2 was invalid and the compliance rate cannot be relied on. However, the fact that the true construction of the contract affects employment relationships throughout the NHS has, quite properly, given rise to detailed and elaborate argument, to which, because of the importance of the issue to the parties and the considerable sums of public money potentially affected, I have thought it right to give equally detailed attention.
- In determining this claim I heard evidence from the Claimant herself, a fellow junior doctor on the same General Surgery F1 rota, Dr Rebecca Potts, and Samuel Wakeford, an Industrial Relations Officer employed by the BMA. On behalf of the Defendant, I heard evidence from Meryl Atkins, who was at the material time the Medical Workforce Advisor for the Defendant, and responsible for the monitoring exercises in issue; and Simon Digweed, who is the product manager employed by Allocate Software Plc for the Allocate software used for these monitoring exercises. Notwithstanding that live evidence was called, there is a very substantial degree of agreement about the objective facts relevant to the issues at stake, though the inferences drawn about the objective facts on each side, through comment from witnesses and in argument, are very different.
- The Claimant was represented by Mr John Cavanagh QC and Ms Sarah Keogh. The Defendant was represented by Mr Richard Leiper QC and Mr Joseph Barrett. I am grateful to all counsel and their legal teams for the helpful way in which the case was presented on both sides, and the excellence of the submissions, both written and oral.
- It is common ground that the principal contractual document that governed the employment relationship between the parties was the Derby Hospitals Principal Terms of Contract of Employment (F1) (referred to as "the Derby contract"). Further, it is agreed that the Derby contract incorporates certain material provisions of the Terms and Conditions of Service for NHS Medical and Dental Staff (England) 2002 (version 10) ("the TCS"). I do not need to resolve an issue between the parties as to whether all the terms of the TCS, or just those indicated below are incorporated into individual contracts, since only those indicated below are relevant to this dispute, and it is agreed all are incorporated.
- The Derby contract requires that the Defendant conducts monitoring to assess whether junior doctors who are part of each relevant rota take adequate rest breaks during their shifts over the term of the rota. The junior doctors are contractually obliged to assist in the monitoring process. If monitoring establishes that junior doctors in a rota have not taken adequate breaks that may lead to significant pay uplifts.
- The issues for determination against that background are, in summary:
- From 7 August 2013 to 5 August 2014, the Claimant was employed by the Defendant as a Foundation House Officer Year 1 (F1)) at the Royal Derby Hospital. She was posted in General Surgery and assigned a full-time shift pattern on the rota from 7 August to 3 December 2013. Her employment with the Defendant terminated on 5 August 2014.
- As already indicated, it is common ground that the Derby contract is the principal document establishing the contractual terms and conditions of employment between the Claimant and Defendant. It made the following provision relevant to the issues in this case.
- Clause 1(b) stated:
- Clause 3 of the Derby contract stated:
- Clause 6[2] of the Derby contract sets out the Claimant's and Defendant's contractual obligations in respect of monitoring of working patterns (hours and natural breaks):
- review by the regional improving junior doctors working lives action team (or equivalent); and
- for the Trust, the performance management systems.
- Clause 7 provides for potential revision to pay banding:
- There are 'Notes' at the end of the Derby contract. Some are obviously linked to the content of the relevant paragraph of the contract to which they refer; others are not. Note 4 appears immediately after clause 11 which deals with residence in hospital accommodation and provides that appointment requires no such residence; but its content indicates that there is no link with that paragraph. It provides:
- Paragraphs 18 to 24 of the TCS set out a number of inter-related provisions relating to shift patterns, pay banding and pay supplements for junior doctors in training grades. Paragraph 18b provides that the Defendant is obliged to ensure that controls on contracted hours are met:
- Paragraph 19c appears under the heading 'Definitions'. The Claimant's shift pattern during the disputed rota (which was a full shift) is defined in the following terms:
- Paragraph 20 provides for controls on junior doctors' working hours. The contractual limits for junior doctors working a full shift pattern are found at paragraph 20c:
- Paragraph 20h imposes obligations on both junior doctors and employing authorities to contribute to suitable working arrangements to ensure compliance with the controls:
- Paragraph 21 relates to pay arrangements, and at paragraph 21a and 21p states:
- Paragraph 22 makes provision to determine which band should be allocated to particular posts and in particular, requires that Band 3 must apply to full time posts that do not comply with relevant controls on hours. So far as relevant, it provides:
- Paragraph 22k provides for the application of certain definitions for the purposes of the assessment of pay supplements in paragraph 22. At (ii) rest is defined as:
- Paragraph 22(l) provides for an appeal mechanism in circumstances where either the employing authority or the junior doctor dispute the allocation of a post to a particular pay band.
- It is common ground that neither the Derby contract nor the TCS themselves spell out how monitoring should be conducted, what is a valid monitoring round or what criteria are to be met to establish non-compliance with controls on hours of duty or hours of actual work or rest applicable to a junior doctor's working pattern. It is at this point that the parties' cases diverge. The Claimant contends that the DH documents and the DH Monitoring Guidance in particular, which were all the product of collective negotiation and agreement, supply the necessary detailed contractual provision. The Defendant contends that the Derby contract, which refers expressly to robust local monitoring arrangements, and the local monitoring arrangements found in the Defendant's Hours Monitoring Guide and FAQs supply the necessary detailed provision. I set out the relevant paragraphs of the competing documents below.
- HSC 98/240 makes clear on its cover page that it was intended to be actioned by NHS Trusts. It provides so far as relevant as follows:
- Annex B, Appendix 1 sets out the rest periods required for each working pattern, with a minimum 30 minute continuous break after approximately four hours' continuous duty and provides:
- HSC 00/031 is also directed at Trusts and provides so far as relevant:
- The monitoring guidance referred to as "on the Website" in the paragraph cited above, is the Junior Doctors' Hours – Monitoring Guidance (referred to as the DH Monitoring Guidance). This states:
- "Agreed national set of standards and guidance
- Simple to use and easy to understand…
- Accurate and transparent…
- Properly resourced locally, with the ultimate contractual responsibility for providing and overseeing monitoring processes resting with NHS Trusts as the employers of junior doctors
- Monitoring systems must be capable of adaptation to take into account any future changes in contractual or legal requirements and the extent of the data required, on an ongoing basis, at local level to reassess hours' compliance and/or to resolve disputes."
- Part C deals with operational guidance for introducing a national monitoring framework and provides at paragraph 10:
- Paragraphs 26 and 27 of the DH Monitoring Guidance are relied on heavily by the Claimant. These provide:
- Paragraphs 28 to 31 state:
- in cases of contractual dispute over the results
- where there is a demonstrable and substantial change in working pattern or working practices in the post(s) during the training period; or
- in the circumstances outlined in paragraph 19
- The Defendant's "Hours monitoring process and you! A guide for junior doctors" (referred to as "the Hours Monitoring Guide") provides so far as relevant:
- The period and duration of the monitoring exercise.
- Advice on using the on-line monitoring process.
- The information required from you.
- An explanation on using the monitoring tools.
- Duties should be recorded within 48 hours of working the duty to ensure accuracy of data.
- You must complete your duty periods as accurately as possible, including start and finish times, details of any breaks taken and reasons for any additional hours worked.
- Any rostered days off (including Saturday and Sunday) must be recorded.
- Shifts/on-call duties must be recorded correctly e.g. if you are working a 24 hour on call, one continuous duty should be recorded and not 2 normal working days.
- Annual leave, study leave or sick leave days must be recorded.
- A 75% doctor and duty return rate is required for a monitoring exercise to be valid.
- A return rate below 75% will necessitate a repeat of the monitoring exercise… However, in some circumstances, a lower return rate may be considered valid…
- If a Band 3 result is returned, the rota will also need to be re monitored within 6 weeks to verify whether this was an accurate return.
- If, after the second monitoring exercise, a valid monitoring return is still not received, then an assessment will be made on the best available information from both sets of monitoring looking also at the rota pattern and the result of the last valid monitoring exercise. The decision would be agreed jointly by the Division and the Medical Workforce Team where appropriate.
- If the return rates are valid, the Medical Workforce Team will analyse the monitoring records. If the analysis differs from the contracted rota then the Medical Workforce Team will review the monitoring records to ascertain the reason for this.
- The FAQ document provides so far as relevant:
- There is no dispute that the Claimant and her cohort worked a full shift pattern (as referred to at paragraph 19c of the TCS); and that the General Surgery F1 rota she worked was in place during the previous posting of doctors from around 3 April to 6 August 2013 without any change in working pattern between those dates. Both General Surgery F1 rotas comprised 22 doctor slots rotating in a four month working pattern. The expected working pattern, if doctors in post were able to work the rostered duties assigned to them and take natural breaks as required by paragraph 22 of the TCS, was calculated by the Defendant to be at Band 1B at the start of the April 2013 rota. This represented a 40% uplift on basic starting salary. The Claimant and her cohort were therefore paid at Band 1B from their start date in post and throughout their posting under the General Surgery F1 rota.
- The Claimant received a pack of documents at the start of her employment, containing the Derby contract which made clear what her working hours and natural breaks were. There was an induction programme on 8 August 2013 which emphasised the importance for junior doctors of taking natural breaks, as the Claimant accepts.
- She was also, together with her cohort, sent reminder emails, including a few weeks later (on 27 August 2013, before any monitoring exercise was in process) emphasising the importance of taking natural breaks and asking junior doctors to let the Defendant's Medical Staffing department (led by Bob Smyth) know if they were not able to take breaks and the reasons why. Although she described that in her witness statement as a strange request, it seems to me to reflect the actions of a responsible Medical Staffing department taking appropriate steps to ensure that natural breaks are being taken on an ongoing basis; and where they were not being taken, helping junior doctors to report that fact so that it could be addressed for the benefit, both of junior doctors, and patients.
- It is clear from the evidence that emails were also sent during the monitoring exercise itself, MR2. For example, by email dated 16 October 2013, Bob Smyth reminded junior doctors of the importance of taking natural breaks and indicated that he would be making random calls to see if they were taking their breaks and if not what help could be provided to ensure that was done. Similarly, emails from Mr Dickenson (Director of Postgraduate Medical Education), for example dated 4 July 2013, reflect appropriate management determination to support junior doctors by securing a change of culture in respect of natural breaks, including by gaining the support of individual consultants on this issue. I do not read this (or other reminder emails) as the Claimant does, as showing the Defendant "desperately trying to avoid a seemingly inevitable non-compliant result…". Different proposals were made to achieve the change of culture referred to (or better compliance with natural break requirements), including a proposal to bleep every junior doctor each day reminding them to take their natural breaks and I am satisfied on the evidence that this was not just done during a monitoring exercise or as a way of avoiding an inevitable non-compliant result.
- Dr Potts agreed that the emails from Mr Smyth showed a consistent approach on the part of the Defendant to ensuring that Medical Staffing were aware of practical difficulties preventing junior doctors from taking their natural breaks. Dr Potts described an occasion where she was concerned about the rota and her ability to cope alone with 60 to 80 patients as she anticipated would be the case that day. She raised this with Bob Smyth and says on that occasion, he arranged for another junior doctor from a different speciality to come in and assist her. She said that was the only time she asked for help and that it was not easy to do. However, it is clear from this that when she asked for help, it was provided. That is consistent, it seems to me, with the emails in which Bob Smyth and others repeatedly invited junior doctors to raise difficulties and to say as quickly as possible if they were unable to take natural breaks so that help could be provided.
- Separately Dr Potts explained that during her time as a junior doctor with the Defendant three-hour teaching sessions once a week were trialled by the Defendant. She states that the junior doctors reported back to the Defendant that this did not work as there was no one to do their jobs when they were teaching so that they would always leave late on a teaching day. Dr Potts said that the Defendant took that feedback into account and changed this practice for the next cohort.
- I set out below the results of the two disputed monitoring rounds, MR1 and MR2, based on the Allocate software calculations as set up for the Defendant. The approach adopted is of course disputed, but there is now no dispute about what the Defendant did and how it went about making its calculations. I return to explain the methodology adopted and the Claimant's objection to it having set out the results.
- MR1 for the General Surgery F1 rota was conducted between 8 and 22 July 2013 and did not involve the Claimant or her cohort. Emails were sent to doctors participating in MR1 attaching the Defendant's Guide, the FAQ and the Zircadian Manual. Of the 22 doctors rostered full-time on the General Surgery F1 rota who were monitored, two completed no records at all and the remaining doctors completed between nine and 14 daily record cards each, producing a doctor return rate of 20/22 x 100 = 90.91%.
- In terms of the duty return rate, the monitoring exercise report shows that 162 worked duties and five study leave duties were monitored out of 218 expected duties in the rota for the two-week monitoring period. The Defendant's approach is for the number of duty returns to be divided by the number of expected duties to produce a percentage duty return figure: that is, 167 divided by 218, which produces a duty return rate of 76.61%.
- Since the threshold doctor return rate and duty return rate for the exercise was 75% the exercise was regarded as valid by the Defendant with a doctor return rate of 90.91% and a duty return rate of 76.61%.
- So far as compliance with natural breaks is concerned, this is calculated by the Defendant's system by looking at the monitored, unmonitored and expected duties. The expected data based on the contracted rota for doctors participating in MR1, together with the data returned by them showed:
- The monitored and unmonitored duties were added together to produce a total of 224 duties. Of those, 54 were recorded as having been non-compliant as regards natural breaks (in other words, natural breaks were not taken approximately every four hours' continuous duty) and 170 were treated as compliant. This produced a percentage compliance calculation for MR1 of 170/224 = 75.89%. This was accordingly treated as valid.
- MR2 for the General Surgery F1 rota (which included the Claimant and her represented class) was conducted between 14 and 28 October 2013. Again, the threshold doctor return rate and duty return rate for the exercise was 75%.
- Although there were 22 doctors assigned to this rota, there were only 21 doctors who took part in the monitoring exercise as one doctor (Dr Mohammed) was retaking one of his seats and was limited in his working pattern to day shifts only. The system treated his doctor returns as unassigned for the purposes of establishing validity and there was another doctor (Dr Clarke) who produced no returns within the exercise. Accordingly, the doctor return rate was calculated on the basis of 20/21 doctors engaging in the exercise and produced a return rate of 95.24% which was therefore valid.
- In terms of the duty return rate, the monitoring exercise report shows that there were 218 expected duties (calculated on the basis of 22 doctors) out of which 156 were monitored. The duty return rate was calculated as follows: 156/218 x 100 = 71.56%. This did not meet the duty return threshold of 75% and the exercise was treated as not valid.
- The natural breaks calculation was nevertheless carried out. In addition to the 156 worked duty periods monitored, the system expected shifts as follows to be monitored but they were not: of 80 expected normal working day duties only 57 were monitored, leaving 23 unmonitored; of 32 long day duties expected, only 19 were monitored leaving 13 unmonitored; of 14 night duties expected, only 10 were monitored leaving four unmonitored; and of 78 NWD2 duties expected, only 56 were monitored leaving 22 unmonitored. There were on this basis 62 unmonitored duties.
- The monitored and unmonitored duties were added together to produce a total of 218 duties. Of those, 55 were recorded as having been non-compliant as regards natural breaks and 163 were treated as compliant. This produced a percentage compliance calculation of 163/218 = 74.77%. This would have been a non-compliant result but was not acted on because the exercise was not treated as valid.
- Since the duty return rate was regarded as invalid because below the 75% threshold, by email dated 10 December 2013, Ms Atkins notified the doctors concerned that the monitoring exercise was deemed invalid on this basis. The doctors were advised that the rota would be re-monitored in January 2014 with the new cohort of F1 trainees working in General Surgery. This was done subsequently and the result was a valid, compliant monitoring round.
- The Defendant, like many NHS Trusts, has a contract with Allocate Software Plc (referred to as "Allocate") for the provision of a "Junior Doctor Portal" system which collates and analyses monitoring data. The Junior Doctor Portal was and continues to be used by the Defendant to assist in conducting monitoring exercises throughout the hospital. It was used in the two monitoring exercises relevant to this claim, MR1 and MR2. Mr Digweed gave evidence as to how it operates, and his explanation was broadly unchallenged, (though the Claimant does not accept its validity). Although Mr Digweed agreed in cross-examination that software (including Allocate) is capable of being designed and set up in different ways, and that the Allocate software could have been set up for NHS Trusts to assess compliance by reference to duties actually worked in a two week monitoring period, he explained that is not the default set up, and the system applied at Derby for the Defendant is the default set up. Although some Trusts make changes occasionally, he said he is not aware of any other Trust making a change to the settings applied by default for assessing compliance. I have not been shown any documentary evidence of other software suppliers setting up their software monitoring systems in any relevantly different way.
- Mr Digweed explained that once a decision has been made to run a monitoring exercise there is a set procedure for the Defendant to go through. The exercise is set up and activated by the Defendant and once set up, junior doctors affected are sent automated emails containing login details with a username and password. Three days before the monitoring exercise is due to start the Junior Doctor Portal sends out an email to each junior doctor taking part in the monitoring exercise confirming the monitoring period and the duties to be monitored. There are further reminders sent to doctors advising them when they can start entering their records. If a junior doctor does not log into the system for three days at any point during the exercise, automatic emails are sent to the doctor to remind him or her to log into the system and record duty information.
- There is a Manual (originally produced by Zircadian) which contains a step-by-step guide for junior doctors in relation to logging into the system and entering the data for recording hours including sick leave, annual leave, study leave or days off. The Manual is made available to all junior doctors and is provided at induction by the Defendant. It is also provided to junior doctors in advance of a particular monitoring exercise taking place.
- Once a monitoring exercise has ended, the software allows junior doctors a certain specified number of days following expiry of the exercise in which to log onto the Junior Doctor Portal and complete their hours' record if they have not been doing that on a daily basis, which is plainly the preferred approach. In the case of the Defendant, this was a period of two additional days. After that time, the system locks out and no further data can be added or amended meaning that the monitoring exercise has closed.
- Before the start of MR2 the Claimant and her cohort received an email dated 7 October 2013 from Ms Atkins, informing them that a monitoring process for two weeks would commence on Monday 14 October 2013. She explained that daily records should be completed by each doctor setting out details of the duty or shift including start time, finishing time and whether natural breaks have been achieved, within 48 hours of working the duty in question to ensure accuracy of data; and that junior doctors should record days on annual, study or sick leave; together with early starts and late finishes. The email set out the BMA guidance on natural breaks. It explained that once the exercise had been activated on the system, the junior doctor would receive two emails from Zircadian/Allocate and they would be sent reminders after a period of three days of inactivity. Once the monitoring exercise had ended, they would have two days to log on and complete their monitoring after which time the system would lock them out. The email attached a number of documents including the Defendant's Hours Monitoring Guide. It also purported to attach the Defendant's FAQ document, but this was omitted in error. The FAQ was however sent to junior doctors in the previous cohort before MR1 started and I am satisfied that it was readily available to any doctor who wished to see it.
- In evidence, the Claimant confirmed her understanding on the basis of the Hours Monitoring Guide, that the Defendant's local monitoring arrangements required a 75% doctor and duty return rate for a monitoring exercise to be valid; that if there was a return rate below 75% the monitoring exercise would be repeated within six weeks of the result notification deadline of the last exercise; and if a Band 3 result was returned, the rota would be re-monitored within six weeks to verify whether this was an accurate return.
- When the monitoring exercise started, each junior doctor had to log into the Junior Doctor Portal and enter information about their working hours for each day's duty in 15 minute slots, identifying what sort of shift it was and the different sorts of work being done. The Claimant explained that the daily diary card took about 10 to 15 minutes to complete each day and recognised the importance of accurate completion and therefore the need to complete records on a daily and prompt basis whenever possible. She completed records for all shifts worked in MR2 and all shifts were compliant with natural breaks in her case.
- Dr Potts gave evidence that she "rarely had opportunities to take natural breaks". That statement, made years after the events in question, appeared to me to be inconsistent with contemporaneous events: the evidence from MR2 shows that Dr Potts worked 10 shifts (referred to as "duties" on the monitoring document) and had four days off. Further, she agreed that the two-week period selected for each monitoring exercise is selected on a random basis, and the October weeks in MR2 were "a very average two weeks". Significantly she was able to complete the diary card for monitoring purposes on a daily basis, making detailed and comprehensive observations on the shift worked that day. The shifts were rostered as eight-hour normal working day shifts, but on three occasions she worked longer hours (on 15 October a 9.45 hour shift, on 18 October a 10.30 hour shift and on 22 October a 10.30 hour shift). She made 10 returns and in respect of seven of those returns, stated that she was able to take her natural breaks.
- On the long days where no natural break was taken, Dr Potts did not contact Medical Staffing as she had been asked to do. She explained that when it is very busy there is simply no time to do that. She was asked whether she called Medical Staffing at the end of the shift to explain what had occurred and said:
- As indicated above, the Allocate software is operated by the Defendant on the basis that for a monitoring exercise to be considered valid, two thresholds must be met. First the returns from monitoring must capture 75% or more of the doctors in training on the monitored rota (this is referred to as the doctor return rate). In other words, 75% or more of the junior doctors on the rota being monitored must submit a diary card return to achieve a valid doctor return rate. Secondly, to be valid there is a threshold of 75% or more of all duties expected to be worked over the monitored period, based on the rota template, that must be captured (this is referred to as the duty return rate).
- The Allocate system calculates the duty return rate by counting the number of duties (or shifts) monitored by junior doctors and dividing that by the number of duties expected in the two-week monitoring period of the planned rota. In other words, the system uses the expected number of contracted duties (whether worked or unworked) as the denominator when calculating if the duty return validity threshold is met. To calculate the expected number of duties, the system totals the number of each contracted duty type in the contracted rota, divides that figure by the cycle length to produce a weekly number, and then multiplies this figure by two, in order to reflect the fact that the monitoring period is two weeks. The monitoring exercise is considered valid by the system if both the doctor and duty return rates are 75% or above on the basis just set out.
- For the purpose of monitoring compliance with contractual controls on hours and natural breaks, the Defendant also has regard to expected data.
- Mr Digweed and the Defendant justify this approach as follows. They say that confirming what a doctor is due to do by way of a working shift can be a difficult and time-consuming process. Although only two monitoring exercises are under scrutiny in this case, each time monitoring is conducted by the Defendant, there are between 70 or 80 separate monitoring exercises conducted. Furthermore, although a two-week period is actually monitored, the monitoring is directed at assessing the rota as a whole, to see if it is fairly seen as compliant with its particular banding. Therefore, to produce an analysis the software system refers back to the starting point for a doctor's working pattern, namely the contracted rota.
- Mr Digweed explained that establishing the rota is itself a complicated process that depends inevitably on a number of variables. Furthermore, as is common ground, the rota is constructed on the basis of "prospective cover". That means that when it is established, the rota factors into the calculation of the number and length of shifts or duties required, the fact that doctors will be taking annual leave in the course of the rota because they have an entitlement to it. The rota does not allow gaps for annual leave days but instead, calculates the number of hours overall required to enable individuals to take days of annual leave within that period and those hours are reflected in the contracted rota template once it is constructed.
- Again, as Mr Digweed explained, the purpose of monitoring the entire group of doctors on the particular rota and assessing pay for the entire group is to try to capture an assessment of the whole rota, rather than just the fortnight monitored. The Claimant accepted this objective. Because monitoring is aimed at testing the rota as a whole by reference to the two-week monitoring period, and because where an individual is on annual leave that is likely to increase the prospects of the remaining doctors not being able to take their natural breaks, in assessing the rota's compliance, the system does not solely focus on the two-week period itself. Rather, where annual leave is taken the system reflects the fact that one of the doctors who was allocated to be working is on annual leave and takes account of that by substituting for unmonitored data, data based on what is expected in the rota template for the unmonitored duty. Further, it does so on the basis that the doctor started and finished at the time set out in the rota and achieved natural breaks.
- The rota therefore has a theoretical premise (as Mr Wakeford also agreed) that some of the shifts or duties rostered will in fact be taken as annual leave, but they are not identified and nor is it possible to identify what type of shift the doctor will take annual leave from (whether a normal working day, a twilight shift etc). It is agreed that annual leave is likely to be taken on a normal working day because in general the Defendant requires doctors to take their annual leave on a normal working day where possible, if necessary by swapping with a colleague.
- So the rota itself is a theoretical construct and in consequence it can produce a fraction of an expected duty in a two-week period.
- Further, where there are worked shifts missing from the monitoring exercise in comparison with the contracted rota, the software substitutes contracted shifts back into the monitoring in order to make a like-for-like comparison. The more monitored data that is recorded by doctors, the less it is necessary to use substituted data to be added back into the analysis.
- Mr Digweed explained that a failure to substitute missing data in this way can skew the results of an exercise. He explained that this approach is well accepted by all parties, including the BMA, in the case of hours monitoring. He said it had previously been understood to have been accepted that natural breaks should be treated in the same way as hours in applying the substitution methodology because to apply a methodology to one but not the other would lead to an inconsistent and/or unfair approach (but the BMA does not accept substitution in relation to natural breaks).
- Mr Digweed illustrated his point as follows. He took a doctor working "normal working days" over a two-week monitoring period. One would expect to see 10 normal days recorded but in his hypothetical example, the doctor only records seven working days. As a result, there is a return rate of 70%. However, the doctor has worked 10 days and from the doctor's perspective would wish that fact to be recognised. If it was not recognised the hours worked would not be monitored and that could negatively impact on banding. Consequently, the three missing duties are brought back into the analysis (albeit they do not contribute to the return rate). The purpose of substituting the data in this way is to "fill in the gaps".
- Furthermore, Mr Digweed explained that an assumption is made that the missing data is compliant. As he said, the fact is that these duties have been performed in circumstances where the Derby contract makes clear the contractual obligation on junior doctors to complete their diary card entries during a monitoring exercise, and regular, frequent reminders are sent stressing the importance of this obligation and the need to comply promptly. If junior doctors are not completing diary cards stating that they have not been able to take their natural breaks, it is assumed they have been able to take them and that the shift complied with the New Deal provisions. This is done to prevent the data being skewed for shifts that are not monitored. The same approach is adopted in relation to annual leave, sick leave and study leave for the reasons already given. Where these are unmonitored, the system treats them as compliant. That is the default set-up for the Allocate software and Mr Digweed said he is not aware of any Trust making changes to that aspect of the system set-up.
- In summary, as Mr Digweed explained the process, these underlying considerations have contributed to the way in which the Allocate system is set up for the Defendant (and many other Trusts) for monitoring purposes as follows:
- The Claimant and Mr Wakeford on behalf of the BMA are critical of the approach adopted by the Defendant and contend that it breaches the Derby contract properly construed.
- As Mr Wakeford explains in his witness statement, and I accept, banding is based on a combined assessment of all monitoring records submitted as part of an exercise and means that a single banding supplement applies to all junior doctors working on a rota. This is based on the premise that all junior doctors on the same rota will, overall and on average, work identical duties during the full length of the rota – even though their duties will vary during any particular snapshot period. As a result, each individual junior doctor's own records will contribute to the overall result as part of the full set of records collected during the exercise. Banding is therefore a mechanism to ensure that junior doctors are paid fairly for the work they do and acts as an incentive to maintain compliant hours/breaks for patient safety purposes.
- In the view of Mr Wakeford and the BMA, the DH documents provide contractual rules for establishing the validity of monitoring data when assessing the compliance of rotas with natural breaks requirements. Namely:
- Mr Wakeford stated that the purpose of this framework is to strike a balance to ensure that the "sample" represented by a monitoring round – a snapshot in time as to how a rota/shift works in any given hospital – is as representative as is realistically possible, accounting for the challenges of collecting data as well as allowing for inevitable variations occurring in practice in a busy clinical environment. If the assessment is not adequately representative (in that ¾ of the relevant data is not recorded), then there is a risk of an unrepresentative or false outcome – which would not be in the interests of employer or employee. If ¾ of the relevant data is recorded, this will provide sufficient data for a statistically relevant analysis to be conducted. The only exception to this rule is where 75% is not deemed to be a representative figure, and he could think of no actual example where this might be so, though he could envisage a situation where a monitored rota has a single junior doctor only, and this could necessitate recording as many of their shifts as possible, in light of the greater risks of unrepresentativeness when extrapolating from less than one single doctor's data.
- Further, as Mr Wakeford explained, in the BMA's view, paragraphs 17 and 26 of the DH Monitoring Guidance make clear that when assessing compliance with natural breaks the Defendant must use actual recorded data only. The use of artificial data creates artificial results which might hinder the Defendant from identifying and taking steps to rectify any source of non-compliance, which could lead to staff welfare or patient safety risk issues. In other words, only the actual data reported by junior doctors working during the monitoring exercise should be considered in a monitoring exercise. Factoring in presumed breaks met on duties or shifts that were not worked skews without proper basis the results towards a falsely higher compliance level. This is what happened in MR1 where, on the monitored records returned, there were in fact only 108 compliant duty periods worked, out of 162 duty periods returned in total, producing a non-compliant result (66.67% only). The approach advocated by the BMA is accordingly to collect data for natural breaks on the basis of actual returns from doctors only. These reflect the "worked reality of the rota" for the doctors who have submitted returns, and nothing more is required.
- However, as Mr Wakeford accepted, the BMA abstracts from that starting point to apply a statistical analysis to the entire working group. In other words, it extrapolates from the data provided in actual returns to reach conclusions about the entire group; and because it is an analysis which does not wholly rely on actual returns it inevitably does not accurately reflect the working reality for the whole group (though he maintains that it does for 75% of the group because of the validity threshold in the software). In other words, it involves an assumption.
- So far as substituted data is concerned, the BMA draws a distinction between hours and natural breaks. The BMA accepts that 'hours' data can be substituted but maintains that 'natural breaks' data cannot be, although (as Mr Wakeford agreed) none of the DH documents relied on by the BMA mandates the use of substituted data for hours or explains the distinction.
- In Mr Wakeford's view, the 'monitored data' part of the calculation done by the Defendant goes some way to recognising that in order to monitor the working reality of junior doctors the returns that matter are those providing information about actual duty periods, so for the duty return rate, only duty periods actually worked must be monitored. The 'monitored data' figure strips out days off, annual leave and sickness and looks only at duty periods that were worked and study leave. However, the comparison then made with 'expected' duties which includes annual leave (no adjustment being made to the average figure to account for the fact that leave will be taken), inflates the figure against which the actual returns are assessed, and the 'monitored duties' figure does not include annual leave. This means that the comparison between 'expected duties' and 'monitored duties' is not comparing like with like. Further, annual leave days are included in the 'expected' figure, but days off are not which is illogical. It follows that the Defendant's approach, which uses figures for duty periods that never actually took place, is wholly illogical: the duty return rate is not actually assessing whether monitoring rounds were returned by the junior doctors for a sufficiently large number of the duty periods which they actually worked.
- Mr Wakeford said that the Defendant's approach means that, as happened with MR2, a monitoring round in which returns were made for at least 75% of the shifts that were actually worked over the two-week period by the junior doctors was nonetheless characterised as invalid (the validity percentage of 71.56% was based on 156/218 but 218 included notional duty periods that are not really duty periods as they will not have been worked because of annual leave or sickness).
- Furthermore, in relation to MR2, the danger of operating on the basis of hypothetical information rather than actual information is illustrated by the fact that the expected figure was wrongly inflated because it was calculated on the assumption that there were 22 junior doctors on the rota when in fact there were only 21. In evidence Ms Atkins accepted that this was a mistake and that this unassigned slot should not have been included. She also accepted that the expected duty periods figure for a 21-person shift would have been 206.17 duty periods (and this was the figure used for the next monitoring round when the mistake was corrected).
- The BMA argue that if the 156 duty periods that had been worked and recorded are worked out as a percentage of 206.17 duty periods, the percentage is 75.67%, a valid outcome.
- In summary, the BMA argues that the Defendant should not have used expected data at all: in fact, there were only 18 days during MR2 (which may have been worked or not) for which returns were not made. If these 18 days were added to the 156 which were worked as if they were worked duty periods, this means that the total number of worked shifts for this monitoring round was 156 + 18 = 174. This means that the duty return rate percentage was 156/174 x 100 = 89.65%, a valid duty return rate.
- In reality, the figure is even higher because the 18 unmonitored duties include 14 attributable to a Dr Clarke. Dr Clarke attempted to return data but was unable to do so, and her duties were not therefore recorded on the system before the exercise closed. (The evidence suggests there were technical problems that were not resolved before the monitoring exercise closed. I reject any suggestion – if such was pursued – that there was any deliberate action on the part of the Defendant to prevent Dr Clarke's records from being counted). Had her records been logged successfully, that would have meant there were only 4 worked but unmonitored duty periods. Accordingly, on this basis MR2 was a valid exercise and its non-compliance should have been acted on by the Defendant in re-banding the Claimant and her cohort to Band 3.
- The basic principles that apply to determine whether a provision in a separate document is incorporated into individual employment contracts are well established and not in dispute. What must be determined is what the parties to the contract intended on the basis of the words used and their context. As Hobhouse J explained in Alexander v Standard Telephones & Cables Ltd (No 2) [1991] IRLR 286 at [31]:
- The first question to be answered is therefore whether the parties have expressly or impliedly agreed that a document should form part of the contract between them. If there is no such agreement the enquiry stops there.
- If there is such an agreement, there remains the further question of which of the terms of the document are 'apt' (in their wording and implications) to be a term of the contract. It is often the case that some provisions in a document are apt for incorporation while others are not. The latter issue (aptness for incorporation) has been considered in a number of later cases.
- In Keeley v Fosroc International [2006] IRLR 961 (CA), an enhanced redundancy payment entitlement provision in a staff handbook presented as a collection of 'policies' was held to be apt for incorporation based on the importance of the provision to the overall bargain between the parties, and the wording of the provision in question, in particular, "its language of entitlement": see [34] and [35]. The Court of Appeal drew a distinction between "statements of entitlement ... intended to have contractual effect" and "quite distinct procedural, aspirational or discretionary matters."
- The starting point in determining whether a statement or provision is apt for incorporation is the wording of the provision itself: the natural and ordinary meaning of the statement or provision, read in context, must be considered. Secondly, consideration must be given to whether the statement or provision, if incorporated, would be inconsistent with the other terms of the contract. If in clear language of entitlement and not inconsistent, it will be incorporated irrespective of the context; but if inconsistent with other terms, it will not be incorporated.
- In Keeley, Dyson LJ observed that whether a statement or provision is apt for incorporation can be tested in the following way:
- The principles set out in Keeley were applied in Sparks v Department for Transport [2016] ICR 695 (CA), which concerned the incorporation into individual employment contracts of provision in a staff handbook relating to management of short term sickness absences. At [30] and [31] McCombe LJ distinguished between rights conferring provisions (which are apt for incorporation) and "good practice guidance" (which are not). The provision in issue was apt for incorporation because it was designed to confer a right on employees over and above the good practice guidance in the policy section of the handbook. It also met Dyson LJ's test referred to above. McCombe LJ concluded that the provision went "beyond mere 'framework for discussion' or 'prompts for managers'" to review sickness records regularly and on a consistent basis: see [33]. The Court of Appeal in Sparks also approved a number of other factors that might indicate whether a provision is to have contractual status identified by Andrew Smith J in Hussain v Surrey and Sussex Healthcare NHS Trust [2012] Med LR 163 at [168] including the importance of the provision to the contractual working relationship between employer and employee and its relationship to contractual arrangements between them; the level of detail prescribed by the provision; the certainty of what that provision requires; the context of the provision i.e. whether it is included amongst other provisions that are contractual might make it more likely to have been intended to have contractual status than one included among other provisions which provide guidance or are otherwise not apt to be contractual; whether the provision is workable or would be if it were taken to have contractual status.
- The starting point in addressing this first issue is the Derby contract. The Derby contract is a model contract used by all Trusts. It expressly incorporates those parts of the TCS relied on in this case. So much is common ground.
- The Claimant contends in addition, that two of the DH documents relied on, the two HSCs, are expressly incorporated by reference at paragraph 22a of the TCS. Paragraph 21a TCS affords a right to junior doctors to receive payment of an additional supplement to base salary according to one of the pay bands in accordance with the assessment of their post as described at paragraph 22 of the TCS. Paragraph 22 makes provision for determining which pay band should apply to the particular post and provides at 22a that Band 3 "shall apply to … posts which do not comply with the controls on hours of duty described in paragraph 20 above or with the controls on hours of actual work or rest described below (refer HSC 1998/240 and HSC 2000/031…) applicable to their working pattern."
- The HSCs are referred to as the source of the rules about whether a duty period is compliant or not. It is done in this way because the rules for validity and compliance were already in existence and treated as setting the contractual criteria before the first edition of the TCS was published in 2002. Incorporation by reference was the obvious solution in those circumstances. Further, these DH documents, together with the monitoring guidance, the model contract and the TCS themselves were the product of a process of collective bargaining and agreement and were all part of a single package.
- HSC 98/240 was intended to be actioned by Trusts; it provides guidance on interpretation, aimed at encouraging a consistent approach across Trusts. The compliance threshold introduced by it is a necessary part of the monitoring arrangements, and absent this threshold, Trusts would be in breach if compliance was anything less than 100%. As for HSC 00/031, it uses mandatory language aimed at achieving a 'consistent national approach' (p392). It provides that all junior doctors on the same shift will receive the same Pay Band (p392), an obligation not found in the TCS or local documents but honoured by the Defendant nevertheless. Further, the Claimant relies on the statement that:
- So far as the DH Monitoring Guidance itself is concerned, the Claimant relies on the following paragraphs as identifying contractual rules apt for incorporation:
- On this basis, Mr Cavanagh QC submits that the relevant incorporated terms are apt for incorporation because they set out clear, certain rules for determining the pay entitlements of junior doctors and are part of the pay/work bargain and important to it and the overall contractual working relationship. The incorporated terms are part of a package alongside terms that everyone agrees are incorporated (in the TCS). They provide hard edged rules, i.e. the criteria for validity and for compliance, rather than vague statements of aspiration or good practice. They are workable and logical. Indeed, without them the contract would have been unworkable. If these provisions were in the TCS they would have been contractually binding.
- Mr Cavanagh invites me to test the issue in this way: if it were otherwise, as the Defendant contends, then the (agreed) contractual term at paragraph 21p of the TCS (to the effect that junior doctors have a contractual entitlement to be on a higher band, such as Band 3, if the rota is shown to belong in a higher pay band as a result of a valid monitoring round) would be meaningless and ineffective. If, as the Defendant contends, Trusts have complete discretion to decide for themselves what counts as compliance, and whether to give effect to a valid compliant monitoring round, then the regime in the TCS does not confer any concrete contractual entitlement at all. Regardless of the results of a monitoring round, junior doctors only become entitled to Band 3 if the Defendant, in its absolute discretion, decides that they should move to Band 3. If the Defendant is correct, the central function of monitoring and Band 3, to act as an inducement to Trusts to ensure junior doctors take their natural breaks, is wholly undermined.
- I do not accept Mr Cavanagh's arguments for the reasons set out below.
- The first and overriding question (as Hobhouse J explained in Alexander) is whether the parties have agreed (expressly or impliedly) that additional documents should form part of the contract between them. My starting point is the Derby contract which is (and is agreed to be) the principal document establishing contractual terms and conditions between the Claimant and the Defendant. It must be considered to determine whether as a matter of construction it evidences an intention by the two parties to it, to incorporate contractually some or all of the external documents contended for by them, and if so, whether any particular provision or provisions of those documents is apt to be a term of the contract between these parties.
- The Derby contract deals expressly at clause 6 with the contractual obligations on both parties to it in respect of monitoring of working hours and natural breaks. Clause 6 (a) provides, in clear unambiguous language, that the Defendant has a contractual obligation
- In other words, the source of the contractual bargain as to what obligations apply to the parties in respect of monitoring of hours (including natural breaks) is clause 6(a). This deals with the substance of the parties' obligations: the Defendant is contractually obliged to conduct monitoring; it is contractually obliged to conduct that monitoring through robust local arrangements; and those robust local arrangements are to be supported by national guidance. The Claimant is contractually obliged to cooperate with the local monitoring arrangements.
- There is nothing in the TCS that detracts from or alters that clear contractual obligation. Though the TCS contains contractual provisions relating to pay and the assessment of pay supplements dependent on the banding to be applied to posts which do not comply with the controls on hours set out at paragraph 20 and/or 22 of the TCS, the terms of the TCS are silent as to the system of monitoring that must be undertaken or how the monitoring is to be done. This is unsurprising. The TCS provides a broad national framework under which the details of local implementation are left to individual Trusts. Some of those details are contractual but others may not be. As the authorities referred to above recognise, good practice guidance is not generally apt for incorporation.
- The language used in clause 6(a) contradicts and is inconsistent with the argument advanced by the Claimant that the contractual intention was for the Defendant to conduct monitoring through arrangements set out in national guidance in the DH documents relied on. It would have been easy for clause 6(a) to impose a contractual obligation on the Defendant to conduct monitoring through nationally agreed arrangements, or through arrangements set out in national guidance. That is not what the contract says as a matter of the natural and ordinary meaning of the contractual words used. It is also not how the contractual obligation was understood in the DH documents relied on by the Claimant: see for example the statement in HSC 00/031 (repeated in the DH Monitoring Guidance) that there will be "a contractual obligation on employers to monitor hours' compliance and the application of the banding system through robust local monitoring arrangements .." (my emphasis).
- The Claimant submits that the words in clause 6(a) (requiring monitoring to be conducted through robust local arrangements) are to be interpreted as limited to the practical, physical or logistical arrangements made for collecting monitoring data (including, whether by paper diary cards, software entries or a man with a clipboard) rather than directed as a matter of substance at how the Defendant should go about monitoring and determining whether controls on hours are complied with.
- I do not accept that submission. Clause 6(a) provides in terms that monitoring is contractually required to be carried out in the manner provided for in relevant local arrangements. I can see no basis for restricting the meaning of these clear words as required by the Claimant's argument. Further, the argument is inconsistent with the reference to local arrangements being supported by national guidance since the relevant national guidance is plainly concerned, not with the physical or logistical arrangements by which monitoring is conducted, but with the substantive methodology for monitoring and determining whether controls on hours are complied with. Put shortly, it is difficult to see why clause 6(a) should address physical or logistical arrangements but not the substantive methodology to be used for monitoring.
- What then are the robust local monitoring arrangements supported by national guidance? It seems to me, in agreement with Mr Leiper QC, that the local monitoring arrangements referred to in clause 6(a) of the Derby contract are those contained in the Defendant's local documents, the Hours Monitoring Guide and the FAQ. These are the documents sent (or readily available) to junior doctors at the beginning of each monitoring round and in context and in light of their content, they are the "local monitoring arrangements" referred to in clause 6(a) and incorporated by reference by it. The fact that they are not referred to by name is neither here nor there. The Hours Monitoring Guide states in terms that its purpose is to explain both the individual doctor's and the employer's contractual obligations for monitoring compliance with the New Deal. In other words, the source of the contractual obligation to conduct monitoring by robust local monitoring arrangements is clause 6(a) and the Hours Monitoring Guide and FAQ explain or provide the detail of those local monitoring arrangements. The fact that the documents explain contractual obligations does not mean they are not contractual; nor do I accept that neither document purports to have contractual force in the sense that neither states that it has contractual force. That is not a necessary requirement.
- The local arrangements are required to be 'supported' by national guidance; in other words, consistently with what is contemplated by the relevant national guidance. It is unsurprising therefore, that these documents do not state that they diverge from the national guidance. It is also unsurprising in these circumstances that Ms Atkins supplied the auditor, in the course of an independent audit of monitoring in 2013, with the HSCs and the DH Monitoring Guidance and said that the national guidance in the HSCs 'have formed the basis of the Trust's Junior Doctors Hours Monitoring Handbook and Monitoring Procedure….'; and unsurprising that she responded in cross-examination as follows:
- The two documents are not simply giving practical assistance to doctors participating in the monitoring process. Rather, in the language of conferring rights and obligations they set out targeted rules. There is a recognition that junior doctors' have a contractual obligation to comply with the monitoring system introduced by the Defendant (pursuant to clause 6 of the Derby contract) and the Defendant has a contractual obligation to ensure the pay banding system is applied appropriately. The Hours Monitoring Guide then sets out:
- Adopting the approach suggested by Dyson LJ in Keeley, if these provisions had been set out in identical terms in the Derby contract, it could not seriously have been argued as a matter of construction that they are not apt for incorporation as contractual terms and, on that account, not part of the Derby contract. They are rules that are important to the overall bargain and the contractual working relationship; they are workable and logical.
- True it is (as Mr Cavanagh submits) that neither document states in terms that the Defendant will not rely solely on actual duty periods worked in order to determine validity for monitoring purposes or will treat each duty period actually worked but for which no return is made as compliant or will count days of annual leave etc. as compliant duty periods. It is also true, as Mr Cavanagh submits, that neither document reserves to the Defendant a general discretion to set the criteria for determining whether a monitoring round is valid or compliant. However, I do not consider that these points assist the Claimant's case.
- Although the FAQ is not as clear as it could and should have been (and there is some internal inconsistency within it) I have concluded that this document does make sufficiently clear that the monitoring system used by the Defendant substitutes data taken from the planned rota to make up for missing hours (see answer to Q20 in particular). It does not state that data will be substituted on the assumed basis that the duty was fully compliant with New Deal controls on hours and breaks. Nor does this appear in the Hours Monitoring Guide.
- In the case of both points, if I am wrong about the FAQ and/or in the absence of an express statement that substituted data will be treated as fully compliant, it seems to me that the result is simply that the local monitoring arrangements set out in the Hours Monitoring Guide and FAQ do not prescribe a detailed methodology for monitoring to that level of detail. That does not mean that the adoption of a particular approach or methodology is necessarily impermissible. Rather, it means that the contract of employment does not make express provision at that level of detail about, for example, the way in which particular calculations will be performed, or how prospective cover will be factored into the process. That is not unusual in a contract of employment; these often leave the detailed methodology to be adopted for a particular purpose (for example the precise method of calculating annual bonuses payable to employees) to the discretionary judgment of the employer. It seems to me, on this basis, the detailed methodology to be used in the software set up (or otherwise) for calculating duty return rates and compliance where data is missing is left to the discretionary judgment of the Defendant, subject to the duties of rationality and trust and confidence owed by the Defendant to its employees. It was not necessary for the Derby contract to include an express provision reserving discretion to the Defendant in order to achieve that result.
- I do not accept Mr Leiper's alternative argument that the Defendant's methodology in respect of monitoring (in particular by the use of expected/substituted data) was incorporated into the Derby contract as a matter of custom and practice. It seems to me that there is no room for custom and practice here. There are express contractual terms dealing with the monitoring process, though they do not make express provision at the level of detail that would prescribe a particular methodology. Furthermore, given that the methodology has never been explained clearly to junior doctors, I cannot see how they can be said to have agreed to it as a matter of custom and practice.
- The Derby contracts refers to local arrangements supported by national guidance, and as set out above, is inconsistent with the Claimant's case in this regard. Moreover, the language of paragraph 22a of the TCS (relied on by the Claimant as effecting the incorporation of the DH documents) does not demonstrate an intention by both parties to incorporate the DH documents into the Derby contract. This provision simply stipulates that junior doctors who are in posts that do not comply with the controls on hours of duty should in principle be entitled to supplemental payments. It makes no provision at all in respect of monitoring arrangements. Read in context, I do not consider that the tangential language ("refer HSC 98/240…") is capable of being construed as evidencing such a common intention: the natural and ordinary meaning of the language used at paragraph 22a is that it is drawing attention to, or noting the HSCs as documents relevant to the provision given effect to in paragraph 22a. The fact that the relevant words appear in parenthesis suggests that they are by way of explanation of the operative provision at paragraph 22a.
- Further, I do not consider that the provisions of the DH documents relied on by the Claimant are apt for incorporation. HSC 98/240 expressly states that it provides "guidelines" for Trusts (paragraph 1). It characterises the document as providing agreed "national guidance" (paragraph 2) on certain topics, (though not on the methodology or arrangements for monitoring). At paragraph 3 it states that its purpose is to "encourage" a consistent approach across NHS employers. The language of "guidelines", "national guidance" and "encourage" indicate that the content is aspirational rather than contractual. Further, I do not accept Mr Cavanagh's contention that the Defendant relies on this document as incorporating certain provisions relied on by it, such as the 75% threshold compliance figure. As indicated above, the 75% compliance figure is expressly provided for in the Hours Monitoring guide and FAQ, consistently with the national guidance.
- Further, the passage in Annex B, Appendix 1 relied upon by the Claimant (containing guidance on "reasonable expectation of rest") summarises rest targets to be met during at least three quarters of all rostered duty periods. Again, this is guidance. The contractual provisions are contained at paragraph 20 and 22 of the TCS; in particular paragraph 22a(vii) sets out the requirement for natural breaks of at least 30 minutes rest after approximately 4 hours' continuous duty. It is implicit in the paragraphs of the TCS dealing with pay, additional supplements and pay bands that junior doctors in the same rota or shift will receive the same pay band.
- HSC 00/031 states on its front cover that the document is "for information only". That is inconsistent with an intention to create contractual relations. Instead, it indicates that monitoring guidance on the website contains key principles; but makes clear that the contractual obligation on employers and junior doctors is to conduct or cooperate with monitoring through local monitoring arrangements.
- So far as the DH Monitoring Guidance is concerned, there is no reference to this document in either the Derby contract or the TCS. Furthermore, the wording of HSC 00/031 that describes the DH Monitoring Guidance reflects the difference between it and contractual obligations found elsewhere by describing the DH Monitoring Guidance as containing "key principles and detailed arrangements" on the one hand, in contrast to the "contractual obligations" on both NHS employers and junior doctors in respect of "robust local monitoring arrangements" on the other. The contractual obligation referred to at paragraph 4, a mutual obligation on employers and on junior doctors) is to monitor and cooperate with monitoring "through robust local monitoring arrangements supported by national guidance". Paragraph 7 explains that the "paragraphs below provide a national framework, containing an agreed set of key principles and standards, together with detailed operational guidance. The guidance outlines what should be monitored, and when…. the guidance also covers the respective responsibilities of the key parties involved in monitoring." Again, this is the language of guidance and the provision of a framework within which to approach the adoption of local monitoring arrangements (see also paragraph 27 to similar effect). The guidance does not identify or prescribe any particular monitoring system that must be used and recognises at paragraph 8 that different approaches are available and are used to monitor successfully.
- The guidance on data processing and analysis is couched in the language of how the exercise "should" be carried out (see, repeatedly, paragraphs 28-31). Again, I read this as providing guidance as to what Trusts should do, rather than imposing mandatory obligations on them.
- Perhaps more importantly, and in any event, I have concluded that the DH Monitoring Guidance and other DH documents do not have the meaning and effect contended for by the Claimant. First, the DH documents make clear that they are subject to the terms of the local monitoring arrangements (here, the Hours Monitoring Guide and FAQ). For example, see paragraph 4 of the DH Monitoring Guidance and the statement at page 3 of the HSC 00/031. Secondly, Annex B, Appendix 1 of HSC 98/240 is not concerned with pay banding dealt with by paragraph 22 of the TCS; rather it is directed at working patterns in practice. That is clear from the consequences of failure to meet rest targets:
- Paragraph 27 expressly states that it provides a "national framework", under which "a minimum return rate for monitoring data should be set at 75%". It was for individual employers to decide where to set their own return rate (provided it was at or above the minimum). This paragraph does not stipulate that the duty return rate is required to be calculated by reference to 75% of the duty periods recorded by junior doctors as actually worked during the monitoring period. Rather, it refers to "75% of all duty periods worked over the monitoring period" and its focus is on ensuring a representative assessment, in other words, a "valid and accurate assessment of hours worked and rest attained". The expectation that systems will be determined, developed and operated locally is also apparent in the language of paragraphs 28 to 31 (and paragraphs 20 to 21).
- Further, I do not agree that paragraphs 17 and 26 mean that the result of the monitoring round must be calculated entirely using 'actual' data, with no 'substitution'. That is not what either paragraph says. On it proper construction, the DH Monitoring Guidance is silent as to whether or not the use of substituted data is permissible. Paragraph 26 expressly recognises that information or data on "contracted duty periods", "calculations for prospective cover within the team" and "weekly shift/rota timetables" will be available. It states that this "data will need to be supplemented by accurately recorded data…". That does not mean that only actual recorded data relating to working times and natural breaks can or must be used.
- Accordingly, applying the legal principles I have summarised above, the Hours Monitoring Guide and the FAQ contain the local monitoring arrangements that the Defendant was required to operate by clause 6 of the Derby contract. To the extent referred to above, the provisions contained in the two documents were apt for incorporation and were expressly incorporated into the contract between the Claimant and Defendant. To the extent that the contract does not make express provision at the level of detail as to methodology for calculating validity and compliance, that was a matter for the discretionary judgment of the Defendant.
- The true meaning and effect of those terms in respect of monitoring and pay-banding can be summarised as follows:
- Subject to the implied term of trust and confidence and the duty not to act irrationally, I have concluded that the Derby contract does not impose any further contractual obligations in respect of the approach to be taken to monitoring and the precise methodology to be adopted. Subject to those terms, the Defendant had a residual discretion as to the precise methodology to be applied in practice in conducting the analysis of validity and compliance.
- In light of these conclusions, and the further conclusions on rationality and the disputed monitoring rounds set out below, it is not strictly necessary to reach a conclusion on the question whether the Defendant is entitled as a matter of discretion to wait before acting on a valid non-compliant monitoring round result, and re-monitor before taking action in relation to re-banding. There is no doubt that the Hours Monitoring Guide makes clear that re-monitoring will occur following a valid non-compliant result, but the consequence for pay banding is not spelt out in writing by the Defendant. It seems to me that paragraph 21p of the TCS provides a right to back-dated pay at the higher level if it is shown that the particular post belongs to a higher pay band as a result of a valid monitoring round. Properly construed, this appears to afford a right to a higher pay band rating following a single valid monitoring round that reflects non-compliance with at least 75% return rates. That is inconsistent with the Defendant's asserted right to operate a 'two-strikes' policy as a matter of discretion.
- Irrespective of my conclusions above, the Claimant contends that the Defendant has acted irrationally in breach of contract in relation to the disputed decisions taken in MR1 and MR2.
- I accept the Claimant's contention that the court is entitled and required to scrutinise the exercise of powers or discretions by employers in cases involving an imbalance of power between contracting parties (see Braganza v BP Shipping [2015] ICR 449 (SC)). I do not agree however, that this is a case involving specific criteria to be applied in the exercise of such discretion, or that all criteria are formally established, so that the exercise simply involves determining whether they were properly applied or not. In particular, although there is undisputed data, I do not agree that this question simply concerns whether a state of fact existed, namely whether 75% of duty periods or 75% of actual duty periods were compliant.
- The Claimant challenges the use of substituted or expected data as irrational and against the spirit and intendment of the validity requirement; and further, challenges the assumption of full compliance when substituting such data. Mr Cavanagh adopts the arguments advanced in evidence by Mr Wakeford (and summarised shortly above), and submits, in summary, that there was readily available actual data that should have been used to reflect the actual experience of the rota, to the exclusion of hypothetical and/or artificial data when monitoring. The Defendant's approach involves assumptions that make it harder to achieve the 75% thresholds than it ought to be and means that in a group of 22 doctors, it would never be possible to achieve 100% returns because there will never be as many monitored duties as there are expected duties when expected duties include periods of annual leave which will not be taken into account when the total numbers for monitored duties are counted. Further, the object of the return rates is to assess whether the sample is sufficiently large to be relied on. Since the monitoring process is designed to look at the working reality, the returns that matter are the returns that provide information about actual duty periods and that can only mean duty periods that are actually worked. The monitored data provides that information because, although it includes annual leave and days off, those duty periods are stripped out when the monitored data figure is calculated by the software. Thus, the monitored data figure reflects only periods that are actually worked together with study leave. The expected duties on the other hand, do not compare like with like because expected duties do include annual leave and other empty slots so that the comparison is not a like-for-like comparison. Furthermore, the use of 'expected' data based on incorrect assumptions of compliance led to an assessment of MR1 as compliant when it was in fact non-compliant; and in MR2 it led to a conclusion that the duty return rate was invalid when it was plainly valid. Only duty periods actually worked should have been considered. If unmonitored duties can be considered at all, that cannot be done on the assumption of full compliance.
- I do not accept these (and the other written) arguments lead to the conclusion that the Defendant's approach in relying, in addition to data on actual worked duties, on expected duties data in substitution for missing data for monitoring purposes, is irrational. My reasons follow.
- While I accept that there may be a number of different methodologies for assessing validity and compliance of monitoring data, and that the software used could be set-up to accommodate different approaches, that is not sufficient to establish the Claimant's case. In agreement with Mr Leiper, I consider the only basis on which I could hold the Defendant's approach to be unlawful is if its methodology is one that no rational NHS employer of junior doctors could have adopted.
- The purpose of monitoring any given two-week period is to assess compliance with controls on hours and natural breaks to ensure that the contracted pay band for the junior doctors on a particular rota is appropriate for that rota as a whole (here, the General Surgery F1 rota). The system adopted by the Defendant must be capable of producing monitoring results for up to 80 rotas in each monitoring exercise.
- As the evidence established, the contracted rota and pay band allocated to it, assumes compliance with natural breaks within its construction and pay band, and importantly, is constructed on the basis of prospective cover. Further, although contractually obliged to cooperate with monitoring, junior doctors do not always return monitoring records.
- In these circumstances, it is rational to conclude that missing data undermines the accuracy and reliability of the assessment that any monitoring round will be able to produce: it is likely to skew the results of a monitoring exercise and make it unrepresentative. Further, it is rational to conclude that assessing monitoring against worked duties only in the monitoring period would not provide a proper comparison with the expected duties across the rota as a whole, and rational in the circumstances to assess the validity threshold for monitoring of the two-week period by reference to the expected number of contracted duties (whether worked or not) in the rota.
- Where data for unworked shifts (as a consequence of prospective cover) is missing from the monitored data in comparison with the contracted rota, and is added back or substituted, an assumption must inevitably be made about that rostered shift. Since what is being assessed is compliance with the rota as a whole and not merely those junior doctors who chose to submit monitoring returns, I consider it rational to assume that the substituted shifts that are added back, reflect compliance with the contractual controls on hours and natural breaks inherent in the rota and pay band that applies to it. So far as worked but unmonitored shifts are concerned, since junior doctors are under a contractual duty to submit returns and know they may benefit financially where shifts are non-compliant, it is reasonable to assume that junior doctors would file returns where shifts are non-compliant. It is therefore a reasonable assumption that if a junior doctor does not return monitoring data this is because the shift was compliant.
- Although the Claimant and the BMA criticise the use of assumptions by the Defendant, their own proposed approach is also predicated on deploying assumptions and extrapolation. While their assumptions are more likely to favour the interests of junior doctors that provides no proper basis for concluding that the Defendant's approach is irrational. As Mr Wakeford accepted, the BMA's preferred methodology "involves an assumption in the way that any approach would do that lacks perfect data". As he also accepted, the true position is that any monitoring exercise involving duties for which returns are not submitted necessitates the use of assumptions of one sort or another. Any approach has limitations or potential drawbacks, and there is, in reality, no perfect or objectively correct solution. Rather, there is a choice to be made by Trusts between a number of potential but imperfect options, and it a question of judgment or evaluation as to whether the merits and demerits of one approach outweigh those of another.
- Furthermore, it is accepted by the Claimant and the BMA that substituting missing data is appropriate in the case of hours monitoring. In other words, expected data can legitimately be used for some monitoring purposes. It seems to me in the circumstances, that it is not unreasonable for the Defendant to conclude that applying a methodology that permits substitution when monitoring hours but not when monitoring natural breaks is an unfairly inconsistent approach. It is significant that the DH Monitoring Guidance recognises that junior doctors' failures to supply monitoring data can have an adverse effect on their pay banding (see paragraph 23, and to similar effect, HSC 00/031). This indicates an expectation that in the event of non-returns, the analysis would need to make use of expected data instead.
- While the choice adopted by the Defendant may tend to skew the assessment towards compliance, that is the natural converse of the Claimant and the BMA's proposed approach, which would skew the assessment towards non-compliance. It does not lead to the conclusion that it is irrational.
- Finally, the evidence shows that the Defendant's methodology (in particular, the use of substituted data on the basis of assumed full compliance) was widely used across NHS employers of junior doctors. The Allocate/Zircadian software has been used by the Defendant since about 2005. As Allocate state in their response to the BMA FOI request, the software application has been "developed and maintained in conjunction with industry experts [and] regional action teams". The document says in terms that where junior doctors' returns in a monitoring round are incomplete, or there is missing data by reference to the contracted rota, the software substitutes expected data. In light of Mr Digweed's evidence, it is clear that approach has been applied by software systems throughout the NHS since the introduction of the New Deal.
- Having dealt with the Defendant's general approach and methodology, I turn to address the particular criticisms of the way in which MR1 and MR2 were conducted.
- I am satisfied that MR1 was a valid exercise in respect of both return rates. The Defendant was entitled to conclude as a matter of contract and on a rational basis, by reference to reliance on expected duties assumed to be fully compliant (as set out above), that junior doctors were able to take the requisite natural breaks in 75.89% of shifts.
- MR2 had a doctor return rate of over 75% but was considered by the Defendant to be an invalid exercise because the duty return rate was only 71.56%. Therefore, although it found compliance with the natural break requirements to be below 75% (74.77%), the outcome was regarded as invalid because of the duty return rate.
- The Claimant challenges the conclusion that the duty return rate was not valid. In addition to the more general arguments already addressed above the Claimant's specific criticisms of the Defendant's approach to MR2 are that: (a) the Defendant was obliged to conduct an assessment that excluded Dr Mohammed entirely from the validity and compliance calculations, and (b) the Defendant was obliged to include the returns of Dr Clarke, notwithstanding that these were not submitted within time.
- I deal with each criticism in turn.
- It is common ground that one of the 22 doctors on the General Surgery F1 rota during MR2, Dr Mohammed, was working on restricted and not ordinary contracted duties. This doctor did not take part in the monitoring exercise because his work pattern differed from that of the other junior doctors on the rota. Nevertheless, the Defendant calculated the expected duties on the basis of 22 doctors and did not exclude Dr Mohammed from the analysis when calculating the duty return rate and compliance rates. In other words, 218 duties based on the expected shifts of 22 doctors in the two-week monitoring period were relied on as the denominator for validity purposes. Ms Atkins accepted that this was a mistake on the part of the Defendant and that the better approach would have been to treat this "unassigned" slot as not being included in the calculation of expected duties. As Ms Atkins also accepted, the expected duty figure for a 21-doctor shift would have been 206.17 duty periods (the figure used for the following monitoring round when the mistake was corrected) and the exercise would have been valid on this basis.
- However, I do not consider that this means that the Defendant acted irrationally in breach of contract. For the reasons given above the Defendant was entitled (as a matter of contract) to adopt a denominator of 218 being the shifts expected to be worked by reference to the contracted rota as a whole which was being tested during this particular monitoring period. Since the purpose of the monitoring exercise was to assess compliance across all expected shifts for that rota, the Defendant was entitled to conclude that the exercise would be valid only where actual returns were submitted in respect of 75% of the shifts expected in the relevant period.
- Alternatively, if the Defendant was required to exclude Dr Mohammed altogether, the logical consequence is that this monitoring exercise was rendered invalid by reason of the flawed basis on which it was conducted (or, as Ms Atkins expressed it, it was "a cancelled or void exercise"). I do not consider that the only option open to the Defendant was to treat MR2 as valid in the circumstances, by performing an alternative calculation that excluded Dr Mohammed after the event. Rather, the Defendant was or would have been entitled to conclude that MR2 was invalid and that re-monitoring was called for.
- So far as Dr Clarke is concerned, it is common ground that she did not succeed in submitting returns for the shifts she undoubtedly worked during MR2 while the exercise was open, probably as a consequence of technical or technological reasons, though the precise reasons were unclear. The Defendant was entitled to treat MR2 as closed when it did. I am quite satisfied that neither Ms Atkins nor the Defendant were seeking to skew the results by preventing Dr Clarke from submitting monitored data in respect of shifts she worked during MR2. The evidence showed that Ms Atkins was entirely prepared to admit late returns for MR2 when raised with her directly and promptly; and to do so when she had no idea whatever what those returns would show (in other words, whether the shifts were compliant with natural breaks or not). There is no foundation for the argument that the Defendant was contractually obliged to include the 14 shifts attributable to Dr Clarke within the total number of duty returns for the purposes of calculating the duty return rate.
- For all these reasons I accept that MR2 was an invalid exercise that required re-monitoring. This occurred in January 2014 producing a valid, compliant result.
- In the course of lengthy written and oral argument both sides made a large number of points by reference to the documents and evidence, and the Claimant in particular, made detailed points on the calculations in relation to each monitoring round. This is an already over-long judgment, but I have sought to deal with what I consider to be the principal points raised in relation to the many points taken. Both sides can be assured that I have considered all the points made even where no specific reference is made to them.
- In light of my conclusions I decline to make the principal declarations sought by the Claimant, but deal with a number of other declarations sought, following circulation of my draft judgment, below. The method of calculation adopted by the Defendant complied with the Derby contract and/or was rational. The Defendant was entitled to reach the conclusions it reached in respect of MR1 and MR2.
- The Particulars of Claim sought a number of declarations (more than 20 in all) relating to different issues and did not stand or fall together. Whether or not to make a declaration is a matter of discretion. The Claimant seeks a declaration, in light of my conclusion at paragraph 132 below, in relation to the 'two strikes' rule. This was a live disputed issue in these proceedings and raises a question of some practical importance. In the circumstances, I am satisfied that the declaration sought should be made. I refuse to make a declaration to the effect that pay banding applies to all the doctors on the same rota since this has never been in dispute between the parties and there is no reason to make it.
- Subject to the declaratory relief referred to above, the claim accordingly fails and is dismissed.
THE HONOURABLE MRS JUSTICE SIMLER DBE
Introduction
The issues
(a) Whether, and if so to what extent, the Derby contract incorporates as enforceable contractual terms the contents of certain other documents? In broad terms:
(i) The Claimant contends for the contractual incorporation of certain parts of three Department of Health ("DH") documents: Health Service Circular 1998/240 ("HSC 98/240"), Health Service Circular 2000/031 ("HSC 00/031") and Junior Doctors' Hours – Monitoring Guidance ("the DH Monitoring Guidance"). It is her case that they contractually prescribe how working hours and natural break monitoring and any consequential pay uplift decisions must be addressed by the Defendant.
(ii) The Defendant contends: (i) the DH documents are not contractually incorporated in the Derby contract, and are mere guidance addressed from DH to NHS employers and/or not apt for incorporation; (ii) so far as relevant, the Derby contract incorporates the content of the Defendant's long-standing, detailed, local guidance documents; and/or (iii) further/alternatively, the true construction of the Derby contract is that these are discretionary matters for the Defendant's judgment subject to the implied term of trust and confidence and the duty to act rationally.
(b) Whether the Defendant acted rationally in its approach to monitoring?
(c) Whether the Defendant's approach to the disputed decisions taken in relation to MR1 and/or MR2 can be challenged?
The Claimant's appointment and the contractual documents governing her employment
The Derby contract
"that the Claimant's 'Rotation 1' would be from 7 August 2013 to 3 December 2013 in 'Breast Surgery' and would be a 'Full Shift' at the 1B pay banding (40%)."
Clause 2 stated:
"Your appointment will be subject to the Terms and Conditions of Service of Hospital Medical and Dental staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales)[1] as amended from time to time and any reference in those Terms and Conditions to an employing Authority shall be construed as if it were to include a reference to an employing Trust."
Accordingly, the Derby contract expressly incorporated certain provisions of the TCS, including in particular, provisions imposing limits on duty hours and providing for pay protection in respect of banding supplements.
"(a) Your hours and duties are as defined in your rota and Training Programme. You will be available for duty hours which in total will not exceed the duty hours set out for your working pattern in paragraph 20 of the Terms and Conditions of Service.
…
(e) Banding supplements may be altered (in accordance with paragraphs 6(e) and 7(c) below in the light of changes in working patterns in order to make posts compliant with the New Deal and the Working Time Regulations as amended. If the payband changes, you will be issued with a letter of variation (in accordance with paragraph 7 below). Pay protection will apply in accordance with paragraph 21 of the terms and Conditions of Service."
"(a) The Trust is contractually obliged to monitor junior doctors' New Deal compliance and the application of the banding system, through robust local monitoring arrangements supported by national guidance. You are contractually obliged to cooperate with those monitoring arrangements.
(b) These arrangements will be subject to:
(c) The Trust must collect and analyse data sufficient to assess hours' compliance and/or to resolve pay or contractual disputes. Therefore, when the Trust reasonably requests you to do so, you must record data on hours worked and forward that data to the Trust.
(d) The Trust is required to ensure that staff in all training grades comply with the controls on hours of actual work and rest detailed in sub-paragraph 22.a of the Terms and Conditions of Service, and with the requirements of the Working Time Regulations as amended from time to time.
(e) You are required to work with your employer to identify appropriate working arrangements or other organisational changes in working practice which move non-compliant posts to compliant posts and to comply with reasonable changes following such discussion.
"(a) The Trust will notify you in writing of its decision on banding.
(b) Full details of the procedure for appealing against banding decisions are in the Terms and Conditions of Service sub-paragraph 22.1
(c) Full details of the procedure for re-banding posts are in the Terms and Conditions of Service sub-paragraph 22.m."
"Copies of HSC 2000/031 – Modernising Pay and Contracts for Hospital Doctors and Dentists in Training, may be obtained on request"
The TCS
"b. Practitioners in these grades [training grades] work on an on-call rota, partial shift, 24 hour partial shift, full shift or hybrid working arrangement. Controls on the contracted hours of duty for each of these working arrangements are set out in paragraph 20 below and employing authorities shall ensure that these controls are met. They shall keep the working and contractual arrangements under review to ensure that they remain in line with the demands of the post. Hours of duty include periods of formal and organised study (other than study leave), training, all rest while on duty, and prospective cover where applicable."
"c. A full shift will divide the total working week into definitive time blocks with practitioners rotating around the shift pattern. Practitioners can expect to be working for the whole duty period, except for natural breaks. Practitioners will be rostered for duty periods that do not exceed 14 hours. Practitioners working on full shifts shall have adequate rest during a period of duty."
"Controls on Hours
20. The following controls on hours of duty shall apply to practitioners in the training grades working…full shifts..:
c. Full Shifts
Employing authorities shall ensure that:
i. The maximum average contracted hours of duty for practitioners working a full shift do not exceed 56 per week including handovers at the start and finish of shifts.
ii. No period of continuous duty for practitioners working full shifts is longer than 14 hours, including the time required for handovers.
iii. Practitioners working full shifts have a minimum period of 8 hours off duty between shifts; do not work more than 13 days without a minimum period of 48 hours of continuous off duty time; and have one minimum continuous period off duty of 62 hours and one minimum continuous period off duty of 48 hours in every period of 28 days."
"h. Employing authorities shall ensure that practitioners in the training grades comply with the relevant controls on hours of duty. Practitioners and their employing authority shall agree to work together to identify appropriate working arrangements or other organisational changes in working practice to ensure the controls on hours of duty, actual work and rest described in sub-paragraphs 18b, 20a to d above and 22a below are met for practitioners in all training grades, and to comply with reasonable changes following these discussions; changes to working arrangements shall be monitored by regional improving junior doctors working lives action team's (or equivalents)."
Paragraph 18b (set out above) provides that the relevant controls on the contracted hours of duty for each of the working arrangements available are set out in paragraph 20 TCS and employing authorities have an obligation to ensure that those controls are met; and to keep the working and contractual arrangements under review to ensure that they remain in line with the demands of the post.
"Payment
21a. Full time practitioners in the training grades receive a base salary. Part time practitioners in these grades receive as base salary a proportion of the full time base salary based on average weekly hours of actual work. An additional supplement will be paid according to one of the pay bands, in accordance with the assessment of their post as described in paragraph 22 below, at the rates set out in Appendix 1." ……..
"21p. In the event of a rota, without any change in working pattern, being shown to belong in a higher pay band as a result of a valid monitoring round, pay at the higher level shall be backdated to the point three calendar months after the first day of the previous successful monitoring round, i.e. that which most recently showed the lower pay band, except:…"
Junior doctors are therefore entitled to receive a pay supplement if their rota is shown to belong in a higher pay band as a result of a valid monitoring round. Each junior doctor affected receives an additional supplement to basic salary pursuant to paragraph 21a but it is the rota as a whole that is monitored and assessed to determine whether it is correctly designated as belonging to the existing or a higher pay band. Accordingly, all junior doctors on the particular rota receive the supplement if it is payable. Paragraph 21p provides for the supplement to be backdated to three months after the last valid monitoring round except in certain cases of no relevance here.
"Assessment of Pay Supplements
22….the assessment of pay supplements for staff in the training grades shall be made as follows:
a. Band 3 shall apply to full time and part time practitioners in posts which do not comply with the controls on hours of duty described in paragraph 20 above or with the controls on hours of actual work or rest described below (refer HSC 1998/240 and HSC 2000/031 including agreement to modify weekend rest requirements for on call rotas) applicable to their work pattern,
i. That practitioners working any of the working arrangements defined in paragraph 19 above, work on average no more than 56 hours of actual work per week;
…
vii. That practitioners working full shifts shall have natural breaks as minimum rest during the whole of each duty period with at least 30 minutes continuous rest after approximately 4 hours continuous duty.
…
f. Band 1B shall apply to full time and part time practitioners who work within the controls on hours applicable to their working arrangement as described in paragraphs 20 and 22a above, and who work on average 48 hours or less of actual work per week and, for part time practitioners, more than 40 hours; and who do not fulfil the criteria for Band 1A or 1C described in sub paragraphs 22d and e above."
…"
"All time on duty when not performing or waiting to perform a clinical or administrative task, and not undertaking a formal educational activity; but including time spent sleeping. Natural breaks do not count as rest"
The DH documents relied on by the Claimant
"Summary
1. This circular provides guidelines for trusts and other signatories to the New Deal for Junior Doctors on the consistent interpretation of acceptable standards on juniors' working hours and living conditions. It sets out further points for trusts to action in making progress towards New Deal accreditation.
2. The New Deal hours' controls are set out at Annex A. This circular provides agreed national guidance in the following areas:
- rest requirements within New Deal working arrangements (Annex B)…
3. Our aim is to encourage a consistent approach across trusts and task forces and to promote understanding where new guidance is being introduced."
"Reasonable expectation of rest: In each of these working patterns, rest targets must be met during at least three quarters of all rostered duty periods. Where this target is not met, urgent consideration will need to be given to changing the working pattern, or reviewing working practices within the existing working pattern, to reduce work intensity to acceptable limits."
"Monitoring Arrangements
Key principles and detailed arrangements for the transition period and for ongoing monitoring purposes after 1 December 2000 are contained in monitoring guidance on the Website. There will be contractual obligation on employers to monitor hours' compliance and the application of the banding system through robust local monitoring arrangements; and on individual junior doctors to cooperate with those arrangements. If either party is not fulfilling their obligations, this could affect the means of determining pay banding, and in some circumstances sanctions may apply. "
"Mutual obligation to monitor hours'
4. From 1 December 2000 there will be a contractual obligation on employers to monitor junior doctors' New Deal compliance and the application of the banding system, through robust local monitoring arrangements supported by national guidance, and on individual junior doctors to cooperate with those monitoring arrangements.
5. These arrangements will be subject to:
review by regional task forces (or their equivalent); and
for employers, the performance management systems.
6. In practice, if either the employer or the employee is not fulfilling their obligations, this could affect the means of determining pay banding and lead to financial and contractual uncertainty. Paragraphs 22 and 23 at Part C below cover the circumstances in which sanctions may apply."
Further, paragraph 7 states:
"7. To ensure consistency across the eight English regions in implementing the new contract, the paragraphs below provide a national framework, containing an agreed set of key principles and standards, together with detailed operational guidance. The guidance outlines what should be monitored, and when so that information can be properly aggregated in trusts and regions and supplied centrally for strategic purposes. The guidance also covers the respective responsibilities of the key parties involved in monitoring. "
Paragraph 9 set out key principles for a national monitoring framework. These include:
"10. Trusts will need to ensure they collect and analyse data sufficient to implement the new pay bandings and juniors' contract from 1 December 2000, and to build on this for the future for reassessing hours' compliance and/or resolving pay or contractual disputes. Junior doctors, in turn, will be responsible for recording date on hours worked, and forwarding that data, at the employer's request. This annex therefore outlines (a) pay banding monitoring requirements and (b) ongoing requirements for monitoring hours, in accordance with current New Deal targets and, subsequently, with agreed new transitional hours limits through the Working Time Directive."
Paragraph 16 states:
"Doctors who have identical duties and responsibilities when working on a shift… should be assessed as working on the same rota or shift. Where this is not the case, those with different duties and responsibilities should be assessed separately. This will enable trusts to ensure that banding decisions can be made which accord with the core principle that all doctors working on the same rota or shift are allocated to the same pay band."
Paragraph 17 states:
"Each duty period must be assessed individually to determine whether the New Deal requirements have been met on the required proportion of occasions as defined in HSC/1998/240 (as amended for assessing weekend rest in pay banding guidance."
Paragraph 25 states:
"What needs to be done locally?
Junior doctors and relevant working colleagues (e.g. medical and other clinical staff, medical staffing officers etc) must be notified adequately in advance of the agreed monitoring period. Those being monitored must have received at their induction or soon thereafter local guidance and instructions on the purposes of monitoring and what is entailed. Job descriptions, letters of appointment and individual contracts should remind all juniors of their contractual obligation to monitor hours on request. In turn, every effort should be made by trusts to assist and encourage full participation in the exercise. Juniors should know where to send the information recorded, adequate collection points on site shall be established, and they should know how to get feedback on the outcome of their participation."
"How should the data be collected?
26. Much of the data needed for assessing banding criteria or New Deal compliance as listed above will already be available in trusts' Medical Staffing sections, e.g. contracts of employment, contracted duty periods, calculations for prospective cover within the team, weekly shift/rota timetables. This data will need to be supplemented by accurately recorded data; e.g. actual length of working week, including early starts/late finishes, rest achieved during the day and overnight, natural breaks, actual working times as opposed to rostered duty periods. Monitoring may throw up situations where the working reality is very different from the expected working patterns, and could indicate the likely source of non-compliance.
27. Under this national framework a minimum return rate for monitoring data should be set at 75% of all doctors in training in each rota or shift (irrespective of grade) participating in the monitoring round, and at 75% of all duty periods worked over the monitoring period, provided this is deemed to be a representative figure in both cases. This threshold is important for making a valid and accurate assessment of hours worked and rest attained."
"How should the hours data be processed and analysed?
28. There should be clear local arrangements for the designation of staff who will process, record and analyse data collected, together with robust performance management structures at all levels in the NHS to ensure that national framework guidance is observed in all trusts employing junior doctors.
29. The system selected for the processing of data should comply with the key principles at Part B. It should be consistent across trusts within the region, compatible with other data and capable of determining New Deal compliance and pay banding. Original data and summary documents should be kept by trusts for a minimum of six years in case of future dispute. The requirements of the Data Protection Act regarding access to individual records and maintaining confidentiality must be followed at all stages.
30. The processing of data should take place immediately after the exercise, allowing adequate time to chase up 'non-returns' or follow up individual queries. The trust should then publish a summary report within 15 working days of receipt of an adequate sample of monitoring data. The report should be set out in a simple, easy to understand format through which duty and working hours can be clearly assessed against New Deal requirements and pay banding criteria. The summary should serve as helpful feedback to individual juniors thereafter. In addition, results on the monitoring exercise should be published locally, broken down by grade and by specialty, and giving response rates in each case. Publication will provide information on problem areas and allow for subsequent discussion by trusts, juniors and others on action plans for the future. This will encourage greater joint ownership of problems raised in the drive for workable, sustainable solutions.
31. For pay banding purposes the mechanisms for agreeing whether monitoring results are valid are laid down in the accompanying guidance. For ongoing compliance purposes, results should be made available to the local New Deal implementation group and/or the BMA junior doctors representative(s) nominated as monitoring validation officer(s). The implementation group or nominated junior can then check to see if monitoring procedures were properly applied, and can test current data against previous monitoring outcomes and any subsequent known changes in working practices, working arrangements or workload pressures. The opportunity for re-monitoring should be given where formally requested either by the trust or junior(s):
and where reference to the regional task force (or future equivalent) for advice or independent arbitration is unlikely to result in early local resolution without further hours' information."
The Hours Monitoring Guide and FAQs relied on by the Defendant as setting out the local monitoring arrangements
"The purpose of this guidance is to explain your contractual responsibilities and those of [the Defendant] as your employer, for monitoring your hours of work to evidence compliance with the New Deal and Working Time Regulations (WTR).
…
As the employee, paragraph 6 of your contract of employment, requires that you comply with any hours monitoring system introduced by [the Defendant] (to enable them to discharge their legal responsibilities). Furthermore, [the Defendant] is contractually required to ensure the pay banding system is applied appropriately to contracts for doctors in training. Accurately recording your working hours will ensure you are correctly paid for the hours you work.
When does monitoring happen?
All rotas worked by doctors in training must be monitored at least twice a year, and more frequently where problems with compliance are identified or where a minimum return rate of 75% is not achieved…
Re-monitoring may take place at the request of either the doctors or the Trust within a reasonable period of time…Wherever possible, re-monitoring will take place with the same set of doctors.
…
How will monitoring be conducted?
The Trust currently uses the Junior Doctor Portal online rota management system from a company called Zircadian.
Using information on shift patterns and the doctors working each rota provided by your Divisional Medical Staffing Administrator, the Medical Workforce Team will set up the monitoring exercises on the Junior Doctor Portal system.
Once the exercise has been set up and activated, you will receive an automated email informing you that the monitoring exercise will be taking place. As well as reminders of the importance of monitoring and the contractual obligation, the email will notify you of:
Three days before the monitoring exercise is due to start, you will receive 2 further emails from Zircadian, one containing your username, the other your password. If you fail to record your hours for a period of 3 days, the system will send you an automated email to remind you to log on and record your hours.
Once the monitoring exercise has ended, you will have 2 further days to log on and complete your working hours record. After this time, you will be locked out of the system and the exercise will close.
…
Important points to remember when recording information during the monitoring period
…
Number crunching and return rates
…
How does re banding work?
If appropriate, re-banding of rotas will apply from either the date a new rota is implemented or from the start date of the monitoring exercise.
…
Teamwork!
You may be asked to work with the Trust to identify appropriate working arrangements or other organisational changes which will assist the move to compliance. You will be required to comply with any reasonable changes following discussion and agreement."
"14. Question: is a 100% return needed for each rota?
Answer:
A 75% doctor return rate is required for each rota monitored to be deemed as a viable return and a 75% duty return rate is also usually required i.e. actual hours worked recorded (not annual leave, study leave etc) for the return to be deemed viable to analyse…"
"18. Question: How does the system capture duties covered by locums in the analysis of monitoring data?
Answer:
Locum doctors are not contractually required to provide monitoring data, although some are willing to do so. The Trust will issue a Junior Doctor Portal account for any long term locum appointments and collect monitoring data from them as if they were a permanent appointment to the rota.
Where locums only cover one or two shifts, it is not possible for them to be included in the monitoring exercise.
Where there are missing duties in the monitoring data, the system substitutes them with duties taken from the planned rota to make up for the missing hours.
For example, if a locum doctor has covered a night shift which is scheduled to start at 2100 hrs and finish at 0930 hrs (and they have not monitored), the system will include 12.5 hrs of non-monitored duty in the final analysis. A maximum of 25% of the duties assessed can be non-monitored duties (sick days, locum cover, etc) unless as per question 14, a lower duty return rate is deemed acceptable, e.g. if it is felt that due to absences, leave etc that this is the best return rate possible and re-monitoring will not achieve a better return rate."
"20. Question: What happens if there is a non-return?
Answer:
For each exercise there are two return targets which are set at 75%.
The first is the Doctor Return Rate. On an exercise of 10 doctors, you would expect at least 8 doctors to return a diary card for this to be considered a valid exercise based on the Doctor Return Rate (80%).
The second is the Duty Return Rate. Any missing duties are taken from the planned rota so that the monitored average hours are a true reflection of the planned rota. At least 75% of the duties taken into account in the monitoring analysis have to be monitored, which allows up to a maximum of 25% of substituted date for annual leave, study leave or any shifts not recorded.
In the event of invalid doctor and/or duty returns below the 75% target, the rota will be re-monitored and an assessment of the rota's compliance made on both sets of monitoring data."
The General Surgery F1 rota
The results of the two monitoring rounds, MR1 and MR2
(a) 162 worked duties as having been monitored by the doctors in question.
(b) There were unmonitored duties for shifts that the system expected to be worked as follows: of 14 night duties expected to be worked, only 10 were monitored, leaving four unmonitored; of 14 expected twilight shifts only 11 were monitored leaving three unmonitored; and of 78 normal working day 2 (NWD2) duties expected, only 24 were monitored leaving 54 unmonitored. This produced a total of 61 expected but unmonitored duties.
(c) An additional unmonitored duty was added because an entry recorded by Dr 6 on Wednesday, 17 July 2013 as study leave should have been monitored as an NWD2 duty. This led the system to treat this duty as unmonitored and therefore as compliant with natural breaks because it was recorded as study leave.
(d) There were on this basis 62 expected but unmonitored duties.
The Allocate monitoring software used by the Defendant
"no I didn't do that, but it's difficult because at the time, this is your first job as a doctor, and you assume it's you not being good enough rather than there some easily fixable way of managing it, and I don't know, as a new doctor you don't think about what could be done…"
(i) the Allocate system works from a starting point of the total number of shifts or duties which are expected to be performed on the particular rota contracted for.
(ii) This is calculated on the basis of prospective cover and as an average over the total rota period. The total number of expected shifts or duty days is determined on this basis (and can include fractions of a duty). It is then divided by the number of weeks of the particular rota, 22 in this case, and multiplied by two to produce an average number of duties expected in the two-week monitoring period. In the case of the two monitoring rounds here, the total number of expected duties was 218 duty periods across the two weeks.
(iii) The system automatically adds in, or substitutes, data where it is missing.
(iv) This is done both in the case of duties worked but not returned in the monitoring; and in the case of duties not worked because taken as annual leave, sick leave or study leave. In other words, it substitutes data for unmonitored duty periods expected to have occurred by reference to the total number of expected duties.
(v) When substituting for unmonitored data in this way, the system assumes full compliance with hours and natural break controls.
(vi) Thus, where annual leave, sick leave or study leave is taken, or a doctor fails to record his or her worked duty, the system assumes that the junior doctor started and finished his or her duty at the time set out in the rota and took his or her natural breaks compliantly with the way in which the rota was established.
The Claimant /BMA challenge to the Defendant's approach
i) at least 75% of all doctors on the rota or shift in the monitoring round must have recorded data for the "doctor return rate"; and
ii) data must have been returned for at least 75% of "all duty periods worked" during the monitoring round for the purposes of the "duty return rate".
The applicable legal framework for incorporation of contractual terms
"The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles…The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn."
"…ask whether, and subject to the issue of certainty, if the redundancy policy had been set out in identical terms in [the] statement of employment terms, it could seriously have been argued as a matter of construction that it was not apt for a contractual term and, on that account, not part of the contract."
The issues
Issue 1: whether and if so, to what extent, the Derby contract incorporates as enforceable contractual terms the provisions of other documents relied on by each side?
"Key principles and detailed arrangements for the transition period and for ongoing monitoring purposes after 1 December 2000 are contained in monitoring guidance on the website. There will be a contractual obligation on employers to monitor hours' compliance and the application of the banding system through robust local monitoring arrangements."
(i) paragraph 4 makes clear that the obligation to monitor is contractual (and although reference is made to 'local monitoring arrangements' this is plainly not intended to contradict what has just been said about there being a contractual obligation to apply the banding system).
(ii) Paragraph 7 makes clear that the document is setting 'standards' and is intended to ensure consistency across the country and paragraph 8 recognises that there are different practical arrangements for monitoring in place.
(iii) Paragraph 9, the key principles, shows that the document recognises that the criteria are 'contractual requirements'.
(iv) Part C identifies the actual monitoring obligations themselves. Paragraph 10 uses the language of obligation, 'pay banding monitoring requirements' and 'ongoing requirements for monitoring hours'. There is an obligation to collect and analyse data sufficient to implement the new pay bandings. Paragraph 17 states that 'each duty period must be assessed individually'. In other words, it is actual duty periods that must be assessed.
(v) Paragraphs 20, 24 and 28 make clear that practical arrangements are a matter for Trusts, provided they comply with the key principles (see 29). Paragraph 24 makes clear that it is 'worked' duty periods that must be assessed.
(xi) Paragraph 26 is key. It could not be clearer that it is actual recorded data relating to working times and natural breaks that must be used, the 'working reality', not an assessment based on the 'expected' working pattern which may be very different from the working reality.
(x) Paragraph 27 imposes the 75% doctor return rate and duty return rate) both used by the Defendant). The duty return rate applies to '75% of all duty periods worked over the monitoring period', so again the focus is on duty periods actually worked.
"to monitor junior doctors' New Deal compliance and the application of the banding system through robust local monitoring arrangements supported by national guidance."
That is mirrored by the contractual obligation (also found in clause 6(a) on junior doctors) to "cooperate" with the local monitoring arrangements.
Q. "So far as you were aware, was there a positive decision by Derby to depart from the national guidance and to set up its own rules about monitoring?
A. I think we follow the national guidance but with local arrangements"
That does not mean that the national guidance governed the individual employment contract; nor did Ms Atkins acknowledge that the national guidance was part of the Claimant's contract, as the Claimant suggested at paragraph 47.2 of her witness statement.
i) the current system in use is the Zircadian (Allocate) Junior Doctor Portal online rota management system.
ii) The Defendant must monitor rotas worked by junior doctors at least twice a year and for a minimum of two weeks.
iii) Duties should be recorded by junior doctors within 48 hours of working the duty to ensure accuracy of data, and records must be completed as accurately as possible.
iv) Annual leave, study leave or sick leave days must be recorded.
v) Junior doctors must work together and with the Defendant to identify appropriate working arrangements and comply with reasonable changes following discussions.
vi) The doctor and duty return rate thresholds are set at 75% for a monitoring exercise to be considered valid.
vii) If a Band 3 result is returned, the rota will need to be re-monitored within 6 weeks to verify whether this was an accurate return.
viii) The FAQ document confirms the two return rate thresholds consistently with the Hours Monitoring Guide. It states that "missing duties are taken from the planned rota so that the monitored average hours are a true reflection of the planned rota. At least 75% of the duties taken into account in the monitoring analysis have to be monitored, which allows up to a maximum of 25% of substituted data for annual leave, study leave or any shifts not recorded."
"…urgent consideration will need to be given to changing the working pattern, or reviewing working practices within the existing working pattern, to reduce work intensity to acceptable limits"
Thirdly, when properly construed the DH Monitoring Guidance provides for the exercise of discretionary judgment by NHS Trusts in relation to the process of data collection and analysis. Detailed guidance is given about data that should be collected. This makes clear that contracted working arrangements (shift, on-call rota, prospective cover arrangements etc) and contracted duty hours data should be collected, and that contracted hours and hours of actual work should be assessed (see paragraphs 11 and 12). I do not read the paragraphs relied on by the Claimant as indicating that only "worked" duty hours/shifts can or must be assessed. Rather, the statement at paragraph 17 that "each duty period must be assessed individually" means no more than that employers should seek a monitoring return in relation to each duty period; and paragraph 26, read as a whole identifies the starting point as the data available to employers before monitoring, namely data for 'contracted duty periods, calculations for prospective cover', that is the data as to how the rota is expected to operate. This information is to be supplemented by accurately recorded data – in other words, actual working data as opposed to rostered duty periods data. The paragraph does not say only actual working data can be relied on.
i) The Claimant was to work a 'Full Shift' work pattern (clause 1 of the Derby contract). A 'Full Shift' is defined by paragraph 19c of the TCS and is subject to the controls on hours stipulated in paragraph 20c of the TCS.
ii) The Claimant was entitled to a base salary of £22,636 (clause 4 of the Derby contract and paragraph 21a of the TCS). The base salary would be supplemented according to a pay banding pursuant to clauses 4(c) and 3(d) of the Derby contract (and in accordance with paragraph 22 of the TCS). The Claimant's post fell within Band 1B (clause 1 of the Derby contract and paragraph 22 of the TCS).
iii) However, if the junior doctors on the Claimant's rota were not having 'natural breaks' of at least 30 minutes' continuous rest after approximately 4 hours' continuous duty, the Claimant would be entitled to be paid under Band 3 (paragraph 22a (vii) of the TCS).
iv) The Defendant was contractually obliged to ensure that controls on hours of duty were met and to keep working arrangements under review (clause 6(d) of the Derby contract and paragraphs 18b and 20h of the TCS).
v) The Defendant was contractually obliged to monitor New Deal compliance and the application of the banding system through robust local monitoring arrangements supported by national guidance (clause 6(a) of the Derby contract and the Hours Monitoring Guide/FAQ). To that end:
vi) the Defendant was required to collect and analyse "sufficient" data for it to be able to assess New Deal compliance (clause 6(c) of the Derby contract).
vii) A monitoring exercise would only be considered valid where both the doctor and duty return rates were at least 75% (the Hours Monitoring Guide and the FAQ).
viii) These assessments could incorporate up to 25% of substituted data in respect of periods of annual leave, study leave or any shifts not recorded by submitted returns (the FAQ).
ix) The Defendant was required to carry out a monitoring exercise at least twice a year for a minimum of two weeks each time (the Hours Monitoring Guide).
x) The junior doctors (including the Claimant) were contractually obliged to cooperate with the Defendant's local monitoring arrangements (clause 6(a) of the Derby contract and the Hours Monitoring Guide). Specifically, that included: an obligation to record and provide monitoring data when reasonably requested to do so (clause 6(c) of the Derby contract); and an obligation to complete duty recording as accurately as possible, and in line with the other requirements stated in the Hours Monitoring Guide.
xi) The junior doctors were contractually required to work together and with the Defendant to identify appropriate working arrangements and to comply with reasonable changes following discussions (paragraph 20h of the TCS; clause 6(e) of the Derby contract; the Hours Monitoring Guide).
Issue 2: whether the Defendant has acted rationally in its approach to monitoring?
Issue 3: the Defendant's approach to MR1 and MR2
Conclusion
Note 1 This was the title of versions 1-9 of the document subsequently entitled ‘Terms and Conditions of Service NHS Medical and Dental Staff (England) 2002’ in its tenth iteration. [Back] Note 2 Due to a typographical error in the Derby contract, the clause numbered both 6 and 7, with sub-clauses (a)-(e) is properly clause 6. The following clause – with sub-clauses (a)-(c)- is properly numbered 7. [Back]