banding appeal training – lessons learnt dan komrower ben o’sullivan michael wright

Banding Appeal Training – Lessons Learnt

Dan Komrower

Ben O’Sullivan

Michael Wright

9:00am Arrival and Registration

9:30 Introduction

9:40New Deal and EWTD

Daniel Komrower and Ben O’Sullivan

10:00Banding appeal and employment tribunal process

Michael Wright

10:15 Banding Appeals ScenariosMichael Wright

11:00 Break

11:15JDAT Preventative Measures

Daniel Komrower and Ben O’Sullivan

11:45 Questions and Answer Session

12:00pm Close

What do you want to get out of the day?

The New Deal Contract and EWTD

A Brief Background

Two restrictors of hours

•Junior Doctors contract – aka ‘New Deal’/Terms and Conditions of Service

•European Working Time Directive – aka UK Working Time Regulations

New Deal

• Came first: 1991 – pay-as-you-go on-call (gent’s

agreement) 1996 – restrictors on hours and rest 2000 – T&Cs and banding structure

• Affects pay

New Deal

• 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.

Banding

‘2’ / ‘3’ >48h / wk Not EWTD compliant (illegal)

0 <40h/wk‘1’ <48h / wk

Banding

‘C’ Least antisocial‘B’ Moderate antisocial‘A’ Most antisocial

Antisocial = outside of 7am – 7pm Mon – Fri

Banding: ‘Band 3’

£13 447Example - 20 FY1s for 1 year - £268 940

Any Questions?

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

UK WTR

• Average weekly work – 48 hours (over 26 weeks)

• Rest: Minimum period off-duty in 24 hours – 11 hours Minimum continuous period off-duty – 48 hours in 2 weeks 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

Any Questions?

EWTD (all rota types)

48 20m/6h 13 11 12 24 in 7 days or

48 in 14 days

Full Shift

On-Call Shift

EWTD (all rota types)

48 20m/6h 13 11 12 24 in 7 days or

48 in 14 days

Any Questions?

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

Natural Breaks

Any Questions?

Banding Claim and the Tribunal Process

Michael Wright

Introduction

What claim can be made?• Where?• When?

Claim form and response The bundle, witnesses and statements The Hearing Settlement Lessons learned

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

What claim can be made?

Option 2: Unlawful deduction from wages• Employment tribunal• Three months from last alleged deduction• Informal and less expensive

Claim form and Response

ET1/claim form• Brief• 28 days to respond• Report?

ET3/Response• Holding response or deal with the issues?• Correct respondent?

Disclosure, the bundle, witnesses and statements Disclosure – all relevant material

Bundle content

Who will be the witnesses?

Experts?

The Hearing

Single judge

Technical claim

Statements taken as read

Reported Cases

Settlement

COT3; or Settlement Agreement

Individual settlement? Confidentiality Balance of power

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

Any Questions?

Get in touch

Michael Wright

e: michael.wright@hilldickinson.com

dd: 0161 817 7266

JDAT Preventative Measures

• Evidence - review of regional banding appeals• JDAT services to help prevent banding issues

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

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

ResultReason Number (Total = 60)

Inadequate “natural breaks” achieved 17

Longest continuous duty limit breached 14

Due process not followed when banding changed 11

Weekly average hours of work 48-56 5

Weekly average hours of work >56 7

Insufficient rest whilst on-call 3

“Pay protection” claim 2

Inadequate minimum continuous period off duty 1

ResultUnderlying reason for rota and work not matching Number (Total = 60)

Rota 28

Policy 22

Communication 18

Co-ordination (working practices of the team) 14

Work load 13

Culture 8

Training 3

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!

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

…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!

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?’

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

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

Thank you – Any Questions?

Junior Doctor Advisory Team

nwd.jdat@nw.hee.nhs.ukwww.nw.hee.nhs.uk/our-work/jdat

Michael Wright

michael.wright@hilldickinson.com

0161 817 7266