banding appeal training – lessons learnt dan komrower ben o’sullivan michael wright
TRANSCRIPT
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?
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
[email protected]/our-work/jdat
Michael Wright
0161 817 7266