“that the Claimant’s ‘Rotation 1’ would be from7 August 2013 to3 December 2013 in ‘Breast Surgery’ and would be a ‘Full Shift’ at the 1B pay banding (40%).” 15. 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) 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. 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.”
“(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 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”
“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).”
“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:…”
“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”
“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 after1 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. From1 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.”
“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 andstandards, 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. ”
“10. Trusts will need to ensure they collect and analyse data sufficient to implement the new pay bandings and juniors’ contract from1 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.”
“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.”
“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.”
“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.”
“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: • 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. 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 • 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. … Number crunching and return rates • 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. … 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.”
“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…”
“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.”
“Key principles and detailed arrangements for the transition period and for ongoing monitoring purposes after1 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.”
“…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”