Published: Wed, 07 Mar 2018
Johnstone v Bloomsbury Health Authority  QB 333
Employer’s liability; doctors’ contract of employment; whether duty not to require working excessive hours.
Dr Johnstone, a junior doctor at University College Hospital was required under his employment contract to work 40 basic hours, and to be available on call for a further 48 hours per week. He worked over 88 hours for several weeks and became ill as a result. He brought an action seeking a declaration that he should not have to work more than 72 hours per week, and damages in negligence for an alleged failure to take reasonable care of his safety in the workplace. The defendant appealed against a decision refusing to strike out his action.
The defendant is under a common law duty of care to take reasonable steps to ensure the safety of their employees in the workplace per Wilsons & Clyde Coal Co Ltd v English  AC 57. The defendants contended that under clause 4(b) of the contract of employment, Dr Johnstone was contractually obliged to work 40 basic hours and be available on call for a further 48 hours and, therefore, his claim was an abuse of process. Dr Johnstone asserted the contractual obligation was void under s2(1) Unfair Contract Terms Act 1977 and that an 88-hour working week was contrary to public policy.
The defendant’s appeal was dismissed. A stipulation that a doctor should work such hours would reasonably foreseeably result in damage to his health. The express contractual term requiring the 88-hour week had to be placed in context. The implied term requiring trust and confidence in every employment contract, and the common law duty to take reasonable steps to provide a safe system of work co-existed, and therefore, Dr Johnstone had a right to attempt to establish his case at trial.
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