Employment Law Case Update: Contractual Breaks

Most likely, there have been times when work has been too busy for us to take a proper lunch break, but what happens if there is no data or record of when this happens?

The case of Hallett v Derby Hospitals NHS Foundation Trust illustrates the importance of ensuring employees take their contractual breaks and the financial implications for not doing so.

Dr Hallett was a junior doctor employed by Derby Hospitals. There was a contractual duty from the hospital to ensure that employees took a 30 minute rest break after working four hours. The terms and conditions of service under which Dr Hallett worked required the rest break target to be met during at least 75 per cent of rostered duty periods. This was monitored by the Trust using software called “Allocate”.

The software based its calculation on the expected number of duties and added in data where it was missing. Dr Hallett argued that use of the software led to outcomes that were in breach of the Trust’s contractual obligations. This is because the Trust applied the default setting of software used widely across the NHS, which skewed the data in such a way that it disguised breaches of compliance with break requirements.

The Court of Appeal (CoA) ruled that the Trust’s methods for assessing rest breaks compliance were flawed because it used data from rotas drawn up in advance rather than using actual recorded data for each duty period. The CoA found that this was in breach of Dr Hallet’s contractual terms of service. Had a correct method been used, it would have been discovered that the requirement to ensure that at least 75 per cent of natural breaks were taken was being breached.

This test case is of significance across the whole NHS because the way in which the Trust had interpreted and applied its obligations, to monitor compliance with the contractual provisions relating to breaks, is similar to the way other NHS Trusts have behaved. This is in part because many NHS Trusts monitor compliance using the same commercially available software.

It is important to note that this ruling relates to the 2002 Contract. This has now been replaced by the Terms and Conditions of Service for NHS Doctors and Dentists in Training (England) 2016, which does not contain the same provision regarding supplemental pay for non-compliance with rest breaks.

A different approach to monitoring, taking breaks and exception reporting is now in place. This means that the scope of this ruling is confined to the potential historic liabilities under the old 2002 Contract relating to non-compliance with the contractual provisions regarding breaks. To bring a claim, any breach must have occurred within the last six years.

All employers should note that this decision potentially gives rise to claims for breach of contract arising from the employer’s failure to take into account actual recorded data when monitoring rest breaks, which has resulted in additional pay supplements not being paid.

This case is an important reminder to employers to make sure they use actual data wherever possible. Accurately recording working time and breaks is beneficial because it provides proof to your employees that their rights are complied with and may encourage employees to take the breaks they are entitled to, therefore preventing a “long-hours culture” with the accompanying stress and tiredness at work.

If you have any questions regarding the recording of working and break times, you can contact our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.