NHS could owe doctors millions of pounds in underpaid wages

Court rules payroll software used by hundreds of trusts underestimated hours and rest periods of junior medics

A landmark court ruling could see NHS trusts across the country forced to pay out tens of millions of pounds to junior doctors who have not been remunerated properly.

Overturning a ruling made in the High Court last year, the Court of Appeal found that Derby Hospitals NHS Foundation Trust had failed to compensate doctors who had not been able to take the breaks they were legally entitled to.

The court said the trust’s use of commercial software – which is also deployed by more than 120 NHS trusts across the country – underestimated the long hours and inadequate rest breaks of many junior doctors.

In its ruling, the Court of Appeal said the cost to the trust could be around £250,000 in supplementary pay for a group of 20 junior doctors over an eight-month period in 2013. 

It added: “The cost more generally, for both the defendant and the NHS as a whole, is potentially substantial.”

Even if just 1 per cent of the 50,000 junior doctors currently working in the UK made claims covering the past six years – the cut-off for taking legal action – and won a comparable amount, this could be equivalent to a bill of more than £37m.

The case was brought by BMA junior doctors committee chair Sarah Hallett on behalf of the doctors and related to a period in 2013 when they worked at the trust.

Junior doctors working under the 2002 NHS contract are entitled to a 30-minute break for every four hours worked, and are also entitled to an increase in pay if at least 75 per cent of shifts on the wider rota do not comply with the rest guidelines.

However, the Court of Appeal found that the eRota system, provided by Allocate Software and used by the trust to calculate the proportion of shifts where breaks had been missed, was flawed as it used expected data instead of recorded data.

The precedent that has been set means it is possible a large number of doctors may have valid claims for breach of contract, according to the BMA.

Speaking to People Management, Paul Holcroft, associate director at Croner, said: “The underlying principle in this case is one that will accord with workers in all industries across the country who are working too much without getting sufficient opportunity for time to switch off, gather themselves and be mentally and physically prepared to get back to work.”

He added: “The NHS contractual position on breaks has resulted in a significant compensation bill. This will not be the case for all employers who break the law on rest breaks but they should not underestimate the time, money and effort that goes into legal proceedings where employees attempt to assert their rights.”

Dr Jeeves Wijesuriya, BMA junior doctors committee chair, described the ruling as “a victory for junior doctors” and said it “confirms that trusts or health boards have been using commercial software that has underestimated the hard work, long hours and inadequate rest faced by junior doctors for years”.

He added: “The doctor supported by the BMA in the case, Dr Sarah Hallett, is not seeking compensation. Our objective has always been to establish the correct interpretation in the law to both protect patient safety and the interests of junior doctors.”

Dr Magnus Harrison, executive medical director at University Hospitals of Derby and Burton NHS Foundation Trust, said: “This decision clearly has implications not only for the trust but other NHS employers.

“It is important that we reflect carefully on the judgment and whether it should be appealed. We are working closely with our legal representatives and relevant stakeholders and we will make a decision in due course.”

A spokesperson for the Department of Health and Social Care said: “We are disappointed with the Court of Appeal’s judgment and we will support Derby Hospitals as they consider next steps.”

A spokesperson for Allocate Software said: “We are working with stakeholders to understand how we can support them following this judgment and we will provide a further update once we have more information.”