1. Banding Appeal Training – Lessons Learnt Dan Komrower Ben O’Sullivan Michael Wright

2. 9:00am Arrival and Registration 9:30 Introduction 9:40 New Deal and EWTD Daniel Komrower and Ben O’Sullivan 10:00 Banding appeal and employment tribunal process Michael Wright 10:15 Banding Appeals Scenarios Michael Wright 11:00 Break 11:15 JDAT Preventative Measures Daniel Komrower and Ben O’Sullivan 11:45 Questions and Answer Session 12:00pm Close

3. What do you want to get out of the day?

4. The New Deal Contract and EWTD A Brief Background

6. Two restrictors of hours Junior Doctors contract – aka ‘New Deal’/Terms and Conditions of Service European Working Time Directive – aka UK Working Time Regulations

7. New Deal Came first: 11991 – pay-as-you-go on-call (gent’s agreement) 11996 – restrictors on hours and rest 22000 – T&Cs and banding structure Affects pay

8. Distinguishes between working patterns:  Full-Shift  Partial Shift  On-call  Hybrid Duty vs Work Paid decided by the rota doctor works Rota is monitored to make certain working practices actually match theoretical rota.

9. Banding ‘2’ / ‘3’ >48h / wkNot EWTD compliant (illegal) 0<40h/wk ‘1’ <48h / wk

10. Banding ‘C’ Least antisocial ‘B’ Moderate antisocial ‘A’Most antisocial Antisocial = outside of 7am – 7pm Mon – Fri

11. Banding: ‘Band 3’ £13 447 Example - 20 FY1s for 1 year - £268 940

12. Any Questions?

13. UK WTR European Health and Safety Legislation (EWTD) adopted into UK law as UK WTR Applies in full, to all doctors (including locums/consultants/SAS) since 2009 SiMAP ruling – at work (‘resident’) = working Jaeger ruling – compensatory rest must follow work DOES NOT AFFECT PAY!! Best to imagine as completely distinct from New Deal

14. UK WTR Average weekly work – 48 hours (over 26 weeks) Rest: MMinimum period off-duty in 24 hours – 11 hours MMinimum continuous period off-duty – 48 hours in 2 weeks NNatural Breaks – 20 minutes for every 6 hours work Can opt-out of 48-hour working. CANNOT opt-out of rest If rest requirements not met, compensation can be given

15. Any Questions?

16. EWTD (all rota types) 4820m/6h131112 24 in 7 days or 48 in 14 days Full Shift

17. On-Call Shift EWTD (all rota types) 4820m/6h131112 24 in 7 days or 48 in 14 days

18. Any Questions?

19. Rest NOT paid for rest Best method – consider as on-call, home and asleep Natural Breaks Natural breaks are NOT counted as rest. Natural Breaks are paid. 30mins - every 4-6 hours You get them, or you don’t Trainees who are not on an on-call rota should leave rest as 0hrs Teaching = work (so lunchtime teaching is not a natural break) Rest and Natural breaks

20. Natural Breaks

21. Any Questions?

23. Banding Claim and the Tribunal Process Michael Wright

24. Introduction  What claim can be made? Where? When?  Claim form and response  The bundle, witnesses and statements  The Hearing  Settlement  Lessons learned

25. What claim can be made? Option 1: Breach of contract 1.High Court 6 years from breach Formal and expensive 2.Employment tribunal On termination 3 months from termination

26. What claim can be made? Option 2: Unlawful deduction from wages Employment tribunal Three months from last alleged deduction Informal and less expensive

27. Claim form and Response  ET1/claim form Brief 28 days to respond Report?  ET3/Response Holding response or deal with the issues? Correct respondent?

28. Disclosure, the bundle, witnesses and statements  Disclosure – all relevant material  Bundle content  Who will be the witnesses?  Experts?

29. The Hearing  Single judge  Technical claim  Statements taken as read

30. Reported Cases

31. Settlement  COT3; or  Settlement Agreement  Individual settlement?  Confidentiality  Balance of power

32. Lessons Learned  Why bother with the internal appeal?  Putting off the work for the tribunal vs. being prepared  Involve the Lead Employer/keep it updated  Mediation?  Get legal advice early  Settlement with the few

33. Any Questions?

34. Get in touch Michael Wright e : michael.wright@hilldickinson.commichael.wright@hilldickinson.com dd: 0161 817 7266

36. JDAT Preventative Measures Evidence - review of regional banding appeals JDAT services to help prevent banding issues

37. Learning the lessons from banding appeals – Evidence based guidance for running junior doctor rotas Adam Moreton, Emma Jackson, Yasmin Ahmed-Little Journal of Health Organization and Management Vol 28 No1 2014 pp 62-76

38. Method 35 trusts contacted to supply details of banding appeals between 2004-2012 15 responded – 35 appeals being reviewed Outcome not collected just the Statement of Case

39. Result ReasonNumber (Total = 60) Inadequate “natural breaks” achieved17 Longest continuous duty limit breached14 Due process not followed when banding changed11 Weekly average hours of work 48-565 Weekly average hours of work >567 Insufficient rest whilst on-call3 “Pay protection” claim2 Inadequate minimum continuous period off duty1

40. Result Underlying reason for rota and work not matchingNumber (Total = 60) Rota28 Policy22 Communication18 Co-ordination (working practices of the team)14 Work load13 Culture8 Training3

41. So how can you prevent this? Robust monitoring policy… …with systematic processes and paper trail Communication lines with trainees – use of JDAT template Ensuring rotas are signed-off Ensure knowledgeable rota managment! Get in touch!

42. Robust monitoring policy New Deal and UK WTR summary Who, where and when the policy applies Who bears overall responsibility for it (business groups/departmental managers, up to execs etc.)? What/when is monitoring? Process… Go through at induction with trainees to sign

43. …processes Rules of monitoring (biannual, trainees working different patterns monitored separately e.g. LTFT) DRS ONLINE MONITORING!! Process checklist – to be distributed to departmental managers. Stages to be dated and initialed when performed. Returned with monitoring data. Careful handling of invalid returns, incorrect data entered, disputed outcomes, Band 3’s – JDAT guidance is available!

44. Communication Give trainees every avenue to raise concerns Excellent communication BEFORE monitoring will prevent lots needed later! JDAT template rota Keep up-to-date personal e-mail addresses Trainee representatives for troublesome rotas (prevents repeatedly answering same question from 10 different trainees! ‘When do we get results?’ ‘What do they show?’

45. Rota management 1 ‘Due process’ is still an important consideration at banding appeals Get rota sign-offs!!: Trainees (Stage 1A) Educational lead (Stage 1C) JDAT (Stage 1B) Guidance on our website

46. Rota management 2 Monitoring non-compliance and local rota amendments Train your consultants/directorate managers before they are handed responsibility for a rota (WE CAN DO THIS!!!!) NO local amendments to rotas unless fully understand the contractual consequences

47. Thank you – Any Questions? Junior Doctor Advisory Team nwd.jdat@nw.hee.nhs.uk www.nw.hee.nhs.uk/our-work/jdat Michael Wright michael.wright@hilldickinson.com 0161 817 7266