Guidance for the GoSWH to identify contractual breaches

For a breach of this limit, the hours that are subject to the fine will be dependent upon whether the breach was caused by scheduled or additional unscheduled hours. 

In cases where the breach has been caused solely by a doctor working their scheduled hours (that is, no additional unscheduled hours were worked), then the final hours worked in the cycle that are more than the 48-average hour limit will be subject to the fine. This is because, right up until these last scheduled hours, a breach could have been avoided by giving time off in lieu (TOIL) to the affected doctor to ensure that they did not exceed the 48-average hour limit. 

It is expected that any non-compliant rotas are flagged before reaching this point and that the necessary changes are made in accordance to the TCS. 

An example of this breach is if a doctor is on a rota with an eight-week rolling cycle. Over the course of the latest run of the eight-week rolling pattern, the doctor worked on average 49.5 hours per week on average due to the rota being non-compliant when it was created. This means that a breach has occurred. Over the course of the rota cycle, the doctor has worked 12 hours greater than they should have. The below calculation explains why the breach is for 12 hours:

• 49.5 hours on average per week – 48 hours on average per week = 1.5 hours on average per week
• 1.5 hours on average per week x 8 weeks (length of reference period) = 12 hours (hours subject to a fine)

In this example, the fine should be levied against the last rostered 12 hours for the rota cycle that the doctor was working, as the doctor could have been given TOIL for 12 hours ahead of the end of the rota cycle to ensure that the doctor didn’t breach this limit. The last 12 hours of the doctor’s rota cycle was a 12 hour night shift. As all of the hours are subject to the enhanced time rate, the value of the 12 hour fine should be calculated according to the below calculation. The doctor is at the ST2 grade and paid according to nodal point 3. 

• £44.72 (Enhanced time penalty rate) - £25.92 (Enhanced time hourly rate) = £18.80 (Differential between hourly rate and penalty rate) 
• £18.80 (Differential) x 12 (number of plain-time hours subject to fine) = £225.60 (Amount owed to doctor)

In cases where the breach has been caused by a doctor working additional unscheduled hours, then the fine should be levied against the additional unscheduled hours that they worked. As all rotas should be created in a manner which complies with hours limits within the 2016 TCS, the norm should be for fines to be levied against additional unscheduled hours that are worked.

For example, a doctor is on a rota with an 8-week rolling cycle and is scheduled to work an average of 47.5 hours per week. Over the course of the latest run of the 8-week rolling pattern, the doctor worked on average 49.25 hours per week on average due to the doctor being required to perform additional unscheduled work. This means that a breach has occurred. Over the course of the rota cycle, the doctor has worked 10 hours greater than they should have. The below calculation explains why the breach is for 10 hours:

• 49.25 hours on average per week – 48 hours on average per week = 1.25 hours on average per week
• 1.25 hours on average per week x 8 weeks (length of reference period) = 10 hours (hours subject to a fine).

In this example, the fine should be levied against the hours that the doctor exception reported for which took their hours over the 48 hour average. In this example, the doctor was rostered to work 47.5 hours on average a week. As the doctor’s average hours ended up being 49.25 hours per week, they have worked an additional 14 unscheduled hours (49.25 hrs/wk – 47.5 hrs/wk = 1.75 hours per week; 1.75 hrs x 8 (reference period) = 14 hours).

It is the last 10 additional unscheduled hours that the doctor worked that the fine should be levied for, as it was these hours that caused the doctor to breach, and the doctor could have been given TOIL ahead of the end of the rota cycle to ensure that the doctor didn’t breach this limit. Although only 10 of the additional hours are subject to a fine, the doctor should be paid for the other additional four hours worked according to the applicable hourly rate, as they have not received payment for these hours via their regular pay.

The additional unscheduled hours that the doctor worked, and the amount owed to the doctor is set out below. The doctor is working as an ST4 and is paid according to nodal point 4. 

•  Exception report for 2-hour late finish, with additional hours occurring between 5pm and 7pm. Requires payment at plain time hourly rate, as these hours did not cause a breach.
  • £23.98 (NP4 plain time hourly rate) x 2 hours = £47.96
• Exception report for 2-hour late finish, with additional hours occurring between 5pm and 7pm. Requires payment at plain time hourly rate, as these hours did not cause a breach.
  •    £23.98 (NP4 plain time hourly rate) x 2 hours = £47.96
• Exception report for 3-hour late finish, with additional hours occurring between 9pm and 12pm. Requires payment at enhanced time penalty rate, as these hours caused a breach.
  •    £56.68 (NP4 enhanced time penalty rate) x 3 hours = £170.04
•  Exception report for 4-hour late finish, with additional hours occurring between 5pm and 9pm. Requires payment at plain time penalty rate, as these hours caused a breach.
  •     £41.38 (NP4 plain time penalty rate) x 4 hours = £165.52
•  Exception report for 3-hour late finish, with additional hours occurring between 9pm and 12pm. Requires payment at enhanced time penalty rate, as these hours caused a breach.
  •     £56.68 (NP4 enhanced time penalty rate) x 3 hours = £170.04
•  In total, the doctor is owed £601.52. This covers the payment for all additional unscheduled work, which the doctor had not previously been paid for, and the applicable penalty rates.

Please note: 

The reference period is defined as being the length of the rota cycle. In accordance with the TCS the rota cycle is, the number of weeks' activity set out in a rota, from which the average hours of a doctor’s work and the distribution of those hours are calculated.

The meaning of this limit is that no doctor should work in excess of 72 hours in any consecutive 168-hour period, regardless of whether the hours worked are caused by scheduled or unscheduled work. In practice this means that in the 168-hour period (seven days) that follows a doctor starting any shift, they must not work in excess of 72 hours. This 168-hour period is a rolling period, which applies from the beginning of every shift. It does not just apply to a calendar week.

If the breach is caused by the doctor working additional unscheduled hours, then the fine should be levied against the additional unscheduled hours which caused the doctor to work in excess of 72 hours in the 168-hour period. 
In such scenarios, the rota will also need to be redesigned due to it being non-compliant with the TCS.
 

This breach is likely to only occur due to clinical emergencies resulting with the doctor working a shift in excess of 13 hours. 

Where this breach occurs, the fine should be levied against the amount of time that the doctor worked in excess of 13 hours. 

For example, a doctor was rostered to work a 12-hour shift from 9am to 9pm. However, due to a clinical emergency, the doctor was required to work until 12AM, meaning that the doctor worked in total for 15 hours. In this scenario, the fine should be levied against the two hours worked from 10pm to 12am, as it was these hours which exceeded the 13-hour limit. The fine for these hours should be levied according to the enhanced penalty rate, as the enhanced rate applies to all hours worked between 9pm and 7am. 

Furthermore, the additional unscheduled hour worked between 9pm and 10pm is not subject to a fine, as this hour did not exceed the 13-hour limit, but the doctor should still receive payment according to the appropriate hourly rate, which is the enhanced rate in this instance.
 

Such breaches occur if a doctor’s continuous rest between periods of scheduled work is less than 11 hours. This rest requirement does not apply to non-resident on-call periods.

Should this breach occur, the fine should be levied against the deficit between the required 11-hours continuous rest and the rest that the doctor received. The employer and the doctor should have agreed the later start on the Friday, to avoid the breaches and have the adequate rest.

For example, a doctor is rostered to finish a shift at 10pm on Thursday and start their next shift at 9AM on Friday. However, due to a clinical emergency, they are required to work for an additional two hours on Thursday and only finish working at 12am. As a result, they only received nine hours of rest between finishing work on Thursday and starting their shift at 9am on Friday. This means that a fine should be levied against the two hours worked between 10pm and 12am on Thursday night. This fine would be levied according to the enhanced rate, as these hours occurred during the enhanced time period.

Lastly, a fine for this breach cannot be raised at the same time as a breach for the 13-hour maximum shift length. 

For example, a doctor is scheduled to work from 9am to 8pm on Wednesday, they are then scheduled to start their next shift at 9am on Thursday. However, due to a clinical emergency, they are required to work until 11pm on Wednesday. As a result, their Wednesday shift ended up being 14 hours in length. In addition, the doctor’s continuous rest between the two shifts was reduced to 10 hours. This relates to the same hours, 13 hour maximum and 11 hour minimum, if you were to fine for both, it cannot be for the same hours. The principle of fining for the deficit should apply whether it’s one episode that causes the breach or more than one.

Please note: As a general principle a single breach incident cannot attract multiple fines for the same hours or time period. The fine can only be levied once.

This breach occurs whenever a doctor working an NROC shift fails to receive at least five hours of continuous rest between 10pm and 7am, as a result of being required to work during this period. Please note that for NROC shifts, besides clinical work, whether on-site or off-site, working time also includes telephone calls, actively awaiting urgent results or updates, and travel time to and from work following a call.

1. During an on-call period, a trainee must achieve at least five hours continuous rest between 10pm and 7am.
2. Where the minimum overnight continuous rest of five hours between 10pm and 7am for a non-resident on-call period is breached, the amount of time that led to the breach will need to be determined. However, they may have already been paid for the time worked and it is likely that some or all of the time may have already been factored into the rota. In this situation, the breach would be due to the time that the anticipated work occurred, which breached the continuous rest requirement.  
3. If a trainee doesn’t achieve the five hours continuous rest, then the episode(s) of the work which occurred during 10pm and 7am will be subject to a guardian fine and the doctor will be paid at the applicable penalty rate.  

For example, where a doctor had a half an hour phone call which interrupted the five hours’ overnight continuous rest between 10pm and 7am, and is paid on nodal point 4, the doctor will be paid for the 30-minute breach at the penalty rate of £56.68, the guardian fine amount is £94.46, taking into account the uplift to the penalty rate only.

Another example of a doctor working a NROC rota, where the doctors rest was disrupted as described below:

•  Between 9pm to 12:30am this included Mental Health Act Assessment, including admin, discussions and travel, total of 3 hours and 30 mins. 
•  Between 12:30am to 2:30am this included admin and patient discussions, total of 2 hours.
•  Between 5:30am to 8:45am, this included Mental Health Act Assessment, including admin and travel, total of 3 hours and 15 mins.

In this example the doctor has worked 8 hours and 45 minutes. All of this time led to a breach of the requirement for 5 hours continuous rest between 10pm and 7am. The maximum continuous rest the doctor received between 10am and 7pm was 3 hours (2:30am to 5:30am), so the breach is the deficit of 2 hours. This is a result of half hour from 2 to 2:30 am and 1.5 hours from 5:30- 7am and should be paid according to the rates set out in the pay circular, at the enhanced hourly rate. 
 

This breach would occur where during the course of a 24-hour NROC shift a doctor has failed to achieve at least 8 hours of rest. 
When this breach has occurred, the value of the fine that to be paid should be assessed by adding up the total amount of rest that the doctor received during the 24-hour period and then calculating the deficit between this and required minimum of 8-hours rest. 

To determine whether the fine should be levied at the plain time or enhanced rate, the hours worked during the shift in question should be compared against the anticipated hours of work at the plain and enhanced times.

For example, a doctor is scheduled for an NROC shift from 9am on Friday to 9am on Saturday. They are required to work from 9am until 9.30pm on Saturday, they arrive at their home at 10pm. They then have five hours of continuous rest until 3am, when they receive a call requiring them to return to work. They arrive back at work at 3.30am and then work until 7amM. Following which they travel home and arrive home at 7.30am. They are not required to work anymore for the rest of their shift. 

Therefore, the doctor has worked for a total of 17 hours and 30 minutes, which includes travel time. As a result, the doctor has only received 6 hours and 30 minutes of rest during the course of their 24-hour NROC shift. This means that a fine should be levied against 1 hour and 30 minutes, as this is how much the deficit is between the rest they achieved and the requirement for eight-hours rest.

As the doctor worked for an hour and a half longer between 9pm and 7am than anticipated in their work schedule, the fine should be levied according to the enhanced time fine rate, and the doctor paid according to the enhanced time penalty rate.

This breach occurs where a doctor has been unable to take at least 25 per cent of the breaks that they are entitled to during the course of four-week reference period. A break counts towards the 25 per cent threshold if a doctor reports they were unable to take it in its entirety or if they report that was significantly disrupted to the extent that they were unable to achieve any rest. For a break to be counted towards the 25 per cent threshold, it must either be exception reported or confirmed by a supervisor that a doctor was unable to take their break.

The breaks that a doctor employed under the 2016 TCS is entitled to are set out below:

• a 30-minute paid break for a shift rostered to last more than five hours.
• a second 30-minute paid break for a shift rostered to last more than nine hours.
• a third 30-minute paid break for a night shift, which is rostered to last 12 hours or more.

The breaks described above can be taken flexibly during a shift and can be combined into one longer break. Where a doctor intended to combine two or three of the breaks they were entitled to during their shift into one continuous break, and they are unable to take this extended break, then the number of missed breaks should be counted as the number of breaks that were being combined together. For example, a doctor intended to combine two breaks together to have an hour-long break, but they were unable to take this break. In this scenario, this should be counted as two missed breaks.

When assessing whether this breach has occurred, you will first of all need to know how many breaks the doctor should have received within the four-week reference period. Once you know this, it is just a matter of calculating the percentage of breaks that have been missed, by dividing the number of breaks that the doctor has exception reported as missed by the number of breaks that they should have received.

For example, in the below four-week reference period from a doctor’s rota, the doctor should have received a total of 26 breaks during the course of the four weeks.  

Due to service pressures, the doctor was only able to take one 30-minute break for each of the night shifts they worked in week one. In addition, they were unable to take any breaks during their long day shift in week four. As a result, they were unable to take eight out of the 26 breaks they were entitled to during this period. Meaning they were unable to take 31 per cent of their breaks, consequently a breach has occurred and a fine must be levied.

The value of the fine to be levied should be determined by the total number of breaks that have been missed within the reference period. It is also necessary to assess whether the break occurred within plain or enhanced time.

Continuing the previous example, as 8 breaks have been missed, this equates to 4 hours (30 minutes x 8 missed breaks). Six of these missed breaks occurred during night shifts, therefore for this breach, a fine for three hours should be levied at the enhanced rate, and a fine for one hour at the plain time rate should be levied.

However, as doctors receive payment within their regular pay for their breaks, the doctor only needs to be paid the differential between the applicable penalty rate and the applicable hourly rate.

Further continuing the previous example, this doctor is an ST3 doctor paid at nodal point 4. Therefore, their basic salary is £50,017 per annum, with their plain time hourly rate being £23.98, and their enhanced time rate being £32.85.  The plain time penalty rate for an ST3 doctor is £41.38, and the enhanced time penalty rate is £56.68.

The below calculations set out the amount that the doctor should be paid:

•  £41.38 (Plain time penalty rate) - £23.98 (Plain time hourly rate) = £17.40 (Differential between hourly rate and penalty rate) 
  •   £17.40 (Differential) x 1 (number of plain time hours subject to fine) = £17.40 (Amount owed to doctor)
•  £56.68 (Enhanced time penalty rate) - £32.85 (Enhanced time hourly rate) = £23.83 (Differential between hourly rate and penalty rate) 
  •   £23.83 (Differential) x 3 (number of enhanced time hours subject to fine) = £71.49 (Amount owed to doctor)
• In total the doctor is owed £88.89 (£17.40 + £71.49) for this breach.