In the last year we have seen an increase in the number of banding appeals. Appeals arise when trusts and junior doctors are in dispute over hours worked and compensation due, under the New Deal rules for doctors.
The increase in appeals comes as no surprise as in 2009 the BMA launched the very effective ‘Know Your Contract, Know Your Rights’ campaign, aimed at newly qualified junior doctors. This campaign has just been relaunched for 2010, and we expect to see the number of appeals rise again.
With the drop to a 48 hour week for junior doctors, reduced from a 56 hour week just over a year ago, rotas are coming under increasing pressure. The same amount of care still needs to be delivered, and with fewer hours available there is now a lot less flexibility in the system. This has led to a climate of heightened pressure on both sides. On the one hand doctors that are working extremely hard are, on average, earning less than they used to due to the drop in hours, yet trusts must comply with European Working Time regulations and also supply ever increasing levels of service on tight budgets. This is bound to cause situations where doctors question the validity of the rotas they are working.
A proper defence
While no one wants to see junior doctors being exploited, neither do we wish to see situations in which hundreds of thousands of pounds of taxpayers’ money is paid to a group of doctors only because the trust concerned is unable to present its case coherently, and is therefore unable to obtain a fair hearing. The sums of money involved are huge, which can be demonstrated by a recent article in BMA News which reports that a group of doctors are to share up to £500,000 in back pay as a result of a banding appeal.
Further examples of the sums involved are two appeals recently won by trusts to which we provided support during the appeal process. Had the trusts lost, one would have paid out over £750,000 and the other approximately £500,000. Having to find such large, unbudgeted amounts will ultimately have an impact on frontline services and will not make life any easier for the majority of junior doctors.
These two cases have signalled a turnaround. Previously the vast majority of cases would have been won by the claimants, the reason being that the junior doctors have the support and backing of the BMA, with all its expertise and vast experience on the New Deal and EWTD. Trusts conversely are usually dependent on medical staffing or HR managers to prepare their defence. Medical staffing and HR managers have many responsibilities making it extremely difficult (and unfair for it to be expected) for them to build up the depth of knowledge required to fight banding appeal cases.
Prepare to win
We believe that the majority of cases are lost by trusts because they do not have the knowledge to present their cases adequately. We have worked with trusts which had been resigned to the idea of settling, in the belief that they could not support their cases, yet the appeals resulted in a successful outcome.
Most trusts will have at least one rota that is causing problems and is likely to be disputed. If this happens the trust needs to have a full understanding of the complex workings of the New Deal. They need to know what the rules are, and most importantly, how they should be interpreted. Of equal importance is being able to present the evidence to support their case.
Monitoring, which takes place twice a year and is a contractual requirement, is a crucial support mechanism for a trust. Junior doctors’ hours are monitored for a period of at least two weeks to ensure that people are working the hours they should be working.
With an online system everything is totally transparent, so both doctors and the trust can see exactly what the position is at any time. If any changes are made retrospectively, these are clear for all to see via an audit or data trail.
Armed with this kind of information together with an expert understanding of the rules and interpretations of the New Deal, many more trusts could get a fair hearing at their banding appeals.
Dr Henry Carleton is managing director at Zircadian