Banding Appeal Training –
Lessons Learnt
Dan Komrower
Ben O’Sullivan
Michael Wright
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
11:15
Break
JDAT 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
0
‘1’
‘2’ / ‘3’
<40h/wk
<48h / wk
>48h / wk
Not EWTD compliant (illegal)
Banding
Antisocial = outside of 7am – 7pm Mon – Fri
‘A’
‘B’
‘C’
Most antisocial
Moderate antisocial
Least antisocial
Banding: ‘Band 3’
£13 447
Example
- 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?
Full Shift
EWTD
(all rota
types)
48
20m/6h
13
11
12
24 in 7 days
or
48 in 14 days
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 and Natural breaks
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)
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
Result
Reason
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
Result
Underlying 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.uk
www.nw.hee.nhs.uk/our-work/jdat
Michael Wright
michael.wright@hilldickinson.com
0161 817 7266