When computers get it wrong – NHS Trust loses breach of contract claim
From time to time, we can all be guilty of relying too heavily on computer software to make decisions on our behalf. The classic example is autocorrect – the computer decides that the word is spelt wrong, and substitutes what it thinks you meant to write. However, anyone who has ever used autocorrect will know that it doesn’t always choose the right replacement. A former colleague of mine routinely signed off his emails “Mavis”, rather than David. As funny as this was, it flags that despite how clever we think our computers are nowadays, the need for human supervision remains…
In the case of Hallett v Derby Hospitals NHS Foundation Trust (August 2019) the Court of Appeal found the NHS Trust to have breached Dr Hallett’s contract as a result of relying too heavily on computer software. Dr Hallett was employed by the Trust under the national “Terms and Conditions of Service for NHS Medical and Dental Staff (England) 2002”. Under these terms, Dr Hallett was entitled to a 30-minute break after 4 hours work. The Trust was required to monitor compliance using accurately recorded data, and if it was found that the junior doctors were not able to take their rest breaks, the doctors would receive a pay supplement.
The Trust used a piece of software, “Allocate”, to manage its rotas. In short, in conducting its monitoring, the Trust ended up using some expected data (based on the hours the doctors should have worked, based on the rota) rather than actual recorded data because the Allocate software permitted the Trust to substitute what Allocate said the doctors worked (based on the rota) where it was missing actual recorded data. Of course, the rotas factored in the appropriate breaks when in reality, the doctors were routinely missing their breaks (and therefore entitled to a pay supplement).
The Court of Appeal ruled that the Trust should not have been using the expected data and that Dr Hallett (and her colleagues) should have been receiving the pay supplement. Accordingly, there are potential huge implications for the NHS if other trusts have been using similar pieces of software for monitoring rest breaks. As this is a breach of contract claim (which can be brought in the civil courts), the NHS can expect claims from as far back as 2013.
The NHS is not the only employer that uses software to calculate pay and other benefits. In particular, many employers use HR software to manage things like absence and holidays. But unless the decisions made by the software are checked from time to time, this can land employers in hot water. For example, an employee who is off sick for pregnancy related reasons should not have this taken into account for the purposes of “trigger points” for absence management, but will the software appreciate the difference between pregnancy related sickness absence, and other forms of sickness absence? Of course, you would hope that your managers/HR team would intervene in such circumstances but as the Hallett case indicates, it can be very easy to simply trust that a computer has reached the correct conclusion.
Not only should your managers and HR teams be experts on your internal policies and procedures, but they should also be kept up to date with legal and best practice updates. In the Hallett case, whoever permitted substituted data to be used for monitoring rest breaks clearly did not understand, or have due regard, for the Trust’s contractual obligations. We provide routine legal update training from our Cardiff, London and Swansea offices, as well as providing bespoke training to our clients in-house (which can include training on internal policies and procedures and contractual obligations). For more information about our training offering, please contact Claire in the employment team.