• University Hospital of Derby and Burton FT considering appeal to Supreme Court on landmark case
  • Court of Appeal ruled trust had breached trainee doctors’ contracts over rest breaks
  • Health secretary Matt Hancock wanted to be co-respondent in case but application was made “too late”
  • Landmark case could have far-reaching implications for other trusts

The Supreme Court could hear a landmark case on trainee doctors’ rest breaks, which could have “huge implications” for NHS trusts. 

University Hospital of Derby and Burton Foundation Trust said it was considering appealing July’s Court of Appeal ruling that junior doctors’ contracts had been breached when it used data from advance rotas and not recorded shift patterns to calculate trainees’ break entitlement. Junior doctors should receive a 30-minute break every four hours they work or be paid double for the time.

The trust’s September board papers added: “This has huge implications, not only for the trust but for the whole of the NHS.”

HSJ understands the trust has already asked the Court of Appeal for permission to appeal to the Supreme Court, but this was rejected earlier this month. The trust is now considering asking the Supreme Court directly if it can appeal the decision. 

The board papers also showed health and social care secretary Matt Hancock asked to be named in the case as a co-respondent. However, this request was refused because the application was made too late.

The board papers added: “[The] people committee were informed that the BMA [British Medical Association] are advising their members… to make FOI [Freedom of Information] requests to trusts for rota monitoring.

“However, these will be put on hold until all the legal avenues have been exhausted. This item will be closely monitored and [the] trust board will be kept informed.”

An ‘irrational’ calculation

The test case was brought against the trust by trainee doctor Sarah Hallett, now chair of the BMA’s junior doctors committee, on behalf of 20 other trainees.

According to the Press Association, in the July Court of Appeal judgment, Lord Justice Bean called the method used by Derby Hospitals FT, as it was then known, of calculating breaks both “irrational” and in breach of junior doctors’ contracts. He added the wider costs to the NHS following the case are “potentially substantial”.

Executive medical director Magnus Harrison told HSJ the decision has implications for the trust and other NHS employers.

He added: “In light of the Court of Appeal’s decision, we are working closely with our legal representatives and relevant stakeholders regarding lodging a further request for permission to the Supreme Court and will make a decision in due course.”

A ‘significant victory’

The BMA declined to comment further when approached by HSJ but previously said the Court of Appeal ruling was a “significant victory” for junior doctors.

Jeeves Wijesuriya, former chair of the BMA’s junior doctors committee, said the breach was linked to trusts’ use of commercial software which underestimated the hours and rest periods for junior doctors over several years.

The Department of Health and Social Care said the Court of Appeal accounted for a “number of factors” in declining its application to be a co-respondent, adding: “We are disappointed by the court’s decision and we will continue to monitor the situation, but it is not our intention to comment further on the legal proceedings between Dr Hallett and Derby Hospitals.”

Although UHDBFT’s board papers said NHS Improvement is among those involved in the case, a spokesman said: “Neither NHSI nor NHS England are involved in this court case and are not responsible for this policy area.”

The trust’s board papers also stated NHS Employers was involved in the case. HSJ approached NHS Employers for comment but has not yet received a response.