This appeal involved a junior doctor who was employed under the standard contract of the Terms and Conditions of Service for NHS Medical and Dental Staff.   This contract required the Trust to monitor work patterns, hours and rest breaks through ‘local monitoring arrangements’.

This required junior doctors to have 30-minute break after four hours’ duty.   If there was a failure to appropriately monitor (which required information from 75% of doctors in training on the rota) then the junior doctors were entitled to a supplement in their pay. It was estimated that 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 in total, is potentially substantial.

The respondent used software that worked out calculations based upon expected number of duties and added data in where it was missing.  There were two monitoring exercises carried out, with the first being regarded as valid yet the second was not as the duty return rate requirements were not met. Accordingly, the appellant applied for the proper interpretation of the provisions.

At first instance, it was held that the Trust had discretion in how to conduct the monitoring and that it was not a breach of contract nor was it irrational.

The Court of Appeal held that the Judge at first instance was correct in stating that the Monitoring Guidance had been incorporated into the contract of junior doctors.  However, other documents such as the FAQs on the monitoring form were not held to be incorporated into the contract of employment as they were merely explanatory documents as to how the monitoring would take place.

Bean LJ stated that the Trust should be using actual recorded data for the 75% requirement, rather than expected data.  This method of calculation was then regarded as being in breach of contract, as well as being irrational. As a result, the Court of Appeal held that the appellant was entitled to be paid the supplement for the relevant period when the monitoring had not been conducted in line with the contract.

Practical Lessons

This is yet another case on the application of the Working Time Regulations where the employer has fallen foul of ensuring that there is the appropriate pay regarding breaks/holidays.  This case may be regarded as more nuanced than the previous ones, considering that it centred upon the method of calculating whether the breaks had been taken by junior doctors.

The Court of Appeal made it clear that actual data should be used, rather than expected data.  On this basis, employers should be mindful that employees are receiving the appropriate breaks and also that it is monitored properly.
https://www.bailii.org/ew/cases/EWCA/Civ/2019/1394.html