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Banding Appeal Training – Lessons Learnt

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

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Banding Appeal Training – Lessons Learnt

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

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

  3. The New Deal Contract and EWTD A Brief Background

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

  5. 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

  6. 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.

  7. Banding 0 <40h/wk ‘1’ <48h / wk ‘2’ / ‘3’ >48h / wk Not EWTD compliant (illegal)

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

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

  10. Any Questions?

  11. 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

  12. 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

  13. Any Questions?

  14. Full Shift

  15. On-Call Shift

  16. Any Questions?

  17. Rest and Natural breaks Rest 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 • NOT paid for rest • Best method – consider as on-call, home and asleep • Trainees who are not on an on-call rota should leave rest as 0hrs • Teaching = work (so lunchtime teaching is not a natural break)

  18. Natural Breaks

  19. Any Questions?

  20. Banding Claim and the Tribunal ProcessMichael Wright

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

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

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

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

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

  26. The Hearing • Single judge • Technical claim • Statements taken as read

  27. Reported Cases

  28. Settlement • COT3; or • Settlement Agreement • Individual settlement? • Confidentiality • Balance of power

  29. 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

  30. Any Questions?

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

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

  33. 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

  34. 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

  35. Result

  36. Result

  37. 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!

  38. 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

  39. …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!

  40. 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?’

  41. 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

  42. 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

  43. 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

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