On the 31st of March 2016 the Department of Health/NHS Employers released the full terms and conditions of the August 2016 junior doctors contract due for imposition from August 2016.
The announcement of these terms and conditions has lead to widespread condemnation regarding the seemingly intentional discrimination against women wishing to undertake a career and family life. The British Orthopaedic Trainees Association wishes to make it clear that we remain fully opposed to this contract’s imposition and in light of recent developments encourage all our membership to stand strong with the BMA in the fight against its imposition.
In this next section we aim to provide a short review of each schedule of the contract and how it may specifically affect orthopaedic trainees in the future. There is a 3 page document on the BMA website summarising this as well.
Schedule 1 – General duties and responsibilities
This section centers around the GMC’s good medical practice guidelines and is as expected. We remain obliged to cover unexpected rota gaps, now with the option of a day in lieu or payment however article 4 specifies we ‘should not be required to undertake this work for prolonged periods or on a regular basis’. One would hope this could be used as a form of protection against enforced on calls at the expense of training opportunities however there is no guarantee of this.
We welcome article 5 that trainees will now be contractually obliged to engage fully with the training programme, however it seems somewhat at odds with articles 6 and 7 that states we ‘must engage constructively with the employer in the design of services and safe working patterns to support service delivery’ and ‘a doctor will make all reasonable efforts to achieve training and service delivery objectives.’ This may be intentionally ambigious, allowing employers to put undue pressure on trainees to perform service provision at the expense of training opportunities.
Lastly, we welcome a contractual obligation to ensure we can sit our examinations in accordance with the curriculum.
Schedule 2 – Arrangement for pay
Article 1 is one of the points that has caused a major outcry. The government has imposed a nodal pay point system based upon rank not experience. In replacement of an incremental yearly pay rise, which is the current system, there will be fixed pay points – FY1, FY2, ST1-ST2, ST3-ST7 and ST8. This would result in an ST7 in trauma & orthopaedics earning exactly the same as a new ST3, with no further remuneration for additional experience, technical skills or acknowledgement of acquired expertise. The other issue from this article is the effect this will have on our gender pay gap. Women (and men), who choose to engage in less than full time training, will obviously progress slower then their full time colleagues. For example, if a trainee chose to have a family and wanted to go the 50% of full time. That trainee would spend 10 years on the ST3-ST7 pay node rather than 5. Equally, if a trainee took a year of maternity leave, which would cause that trainee to fall 6 months to a year behind your male colleagues again with the nodal system your projected next node up becomes farther away, resulting in your pay
Articles 14-19 cover hours attracting additional premiums. Plain time will be 07:00 – 21:00 Monday – Friday and 07:00 – 17:00 Saturday. Hours attracting a 30% premium will be 17:00 – 21:00 Saturday and 07:00 – 21:00 Sunday and finally hours attracting a premium of 50% premium will be night shift any day of the week now defined as 21:00 – 07:00.
When counting additional hours these will be rounded to the nearest quarter of an hour.
There is a lot in this schedule about flexible pay premia but at present this is not relevant to T&O.
Pay protection on re-entering training, previously in order to foster a mobile workforce and allow people to switch specialty without incurring a financial penalty in recognition that there are transferable skills and clinical acumen to be gained in any area of medicine or surgery. Under the new contract there will be no pay protection unless you move to a specialty with a flexible pay premia attached in which case this will be used to make up the shortfall in basic pay only not to keep up with any out of hours payments etc. In order to be eligible for payment protection, even when moving to an under filled specialty, a trainee must have been in post for 13 months and move immediately from one to another without a career break.
There will be London weighting in the new contract. paid as a fixed sum pro rata.
Articles 61-63 deal with changes to pensionable pay. The increase in basic pay by 13.5% means that more of a trainee’s salary is pensionable, this will also include flexible pay premia and London weighting. This is important as the pay in pot has now fallen to £1million and you will most likely over pay incurring up to 60% tax on your pension. We would advise speaking to a financial planner about this further for other opportunities and speculations.
If we are lucky enough to receive another pay rise this will be amended on the introduction date of that rise. If there are changes to the schedule that will result in a pay cut then we would be protected until the end of that 6 month rotation but upon starting the next job the reduction in pay would be enforced.
Articles 67-70 deal with a new phenomenon where doctors have to stay late to ‘
There will be an obligation to offer additional hours (locums) in house prior to using an agency. These will be subject to the locum rate caps but NHS Foundation Trusts should be able to set them for themselves as well. There is some speculation in the implementation of these articles. Some have suggested that trainees must inform their employer if they wished to undertake a locum shift in a different trust. If the employing or supervising trust was in need of locum staff trainees would be obliged to work in their parent trust, and be denied permission to work in an adjacent trust.
Schedule 3 – working hours
Average weekly hours should not exceed 48 hours and no more then 72 hours in a single week. No more than 5 long days (>10 hours) and no more than 4 shifts including night hours (past 21:00) in a row.
Night shifts will be redefined as any shift where 3 or more hours are worked between 23:00 and 06:00.
Rest sessions seem erratic at best 48 hour rest is only given after 5 consecutive long days or 4 consecutive night shifts.
A maximum of 8 shifts of any type can be consecutively roistered. If there is 8 in a row 48 hour rest session must be given.
A doctor cannot work 2 consecutive weekends without written consent.
24 hour on calls cannot be consecutive apart from at the weekend when they can. If your night has been significantly disturbed you can take the next day off and pay will not be affected.
When a doctor is required to be resident in the workplace the entire period of residence will be counted as work. This may apply to trainees who have to stay on site due to distance from their home to the hospital. Further clarification is needed on this.
Schedule 4 – Work scheduling
The first subsection of this schedule is entitled principles: This in-cooperates the agreement between employee and trainee regarding the balance between service provision and training. A generic work schedule (formerly job plan) must be provided to the doctor at the start of the placement which is mapped to the curriculum and allows time for quality improvement projects, formal study other than leave.
This generic work schedule can be personalised by an educational supervisor in accordance with the Gold Guide recommendations to make a personalised work schedule.
There is an example work schedule template on the NHS Employers website which counts hours but does not have a specific timetable. Without a specific timetable I do not believe it will be possible to strike the balance between service delivery and training.
Disagreements over the work schedule can be resolved through exception reporting and the Guardian system.
Schedule 5 – Exception reporting and work scheduling reviews
Exception reporting is a way of recording any discrepancy between a work schedule and actual hours worked e.g. running over or no breaks etc. these will be sent electronically to the educational supervisor and be copied to the director of medical education. Your AES is responsible for changing your personal work schedule to ensure safe working which can be escalated to the director of medical education or the guardian if not resolved. If exception reports valid the doctor will be paid as above under pay and the guardian will levy a fine of 150% for plain time, 223% for +30% and 275% for +50%.
Work schedule review can be requested by a doctor, the AES, the director of medical education, or the Guardian. The initial response would be a face to face with the AES to resolve the issues, if not satisfactory for the doctor, a level 2 review can be requested, which should be concluded within 21 days. If this is not satisfactory a final work review can be requested within 14 days of the decision. The decision of this will be final with no appeals. It would appear that this would all happen ‘in house’ throwing into doubt the fairness of such a complaints pathway.
Schedule 6 – Guardian of safe working hours
The main responsibility if the Guardian is to ensure that the hours worked are compliant. The Guardian will be a senior (usually) doctor who does not have a management role within the organisation. They will act as a champion for safe working, ensure generic work schedules are compliant, receive exception reports, escalate issues, intervene if required, have enough authority to intervene, and distribute monies received from fines for education. Below is the job specification for a Guardian and the ‘Key areas” they will be responsible for:-
The Guardian will:
- Act as the ‘champion’ of safe working hours for doctors in approved training programmes and ensure that action is taken to ensure that the working hours within the Trust are safe.
- Provide assurance to the Trust Board or equivalent body that doctors are safely rostered and are working hours that are safe and in compliance with the TCS.
- Record and monitor compliance with the restrictions on working hours stipulated in the terms and conditions, through receipt and review of all exception reports in respect of safe working hours.
- Ensure that exception reports regarding training hours, as set out in the work schedule, are sent to the DME or equivalent officer.
- Work in collaboration with the DME or equivalent officer to ensure that the identified issues within exception reports concerning both working hours and training hours are properly addressed by the employer and/or host organisation.
- Escalate issues in relation to working hours raised in exception reports to the relevant executive body for decisions where these have not been addressed at a local level.
- Require a work schedule review to be undertaken where there are regular or persistent breaches in safe working hours which have not been addressed.
- Directly receive exception reports where there are immediate or serious risks to safety and ensure that the organisation at a local level has addressed the concerns that led to the exception report. Where this is not addressed within the timescales identified in Schedule 5, and the guardian deems it appropriate, the guardian will raise this with the Executive of the employing and/or host organisation.
- Have the authority to intervene in any instance where the guardian feels the safety of patients and/or doctors is compromised, or that issues are not being resolved satisfactorily.
- Distribute monies received as a consequence of financial penalties to improve the training and working experience of all doctors. Examples may include and should not be limited to:
- IT systems
- Facilitating study leave
- Rest facilities
- Handover systems
- Expertise in rota design
- Service improvement projects
- Examination/course/professional support
- Role redesign pilots
- Staff engagement
- Library facilities
- Corporate journal subscriptions.
- Prepare, not less than annually, a Report for the Trust Board or equivalent body which summarises all exception reports and work schedule reviews and provides assurance on compliance with safe working hours by both the employer and doctors in approved training programmes.
- Liaise with the DME, Deanery, doctors and their representatives to ensure an overall quality assurance system in relation to safe hours of work.(Employers 2016)
The Guardian will report directly to the hospital board and will give an annual report+/- additional report of non-resolved serious issues. The hospital board then provides reports to external bodies e.g. CQC, GMC and HEE.
Schedule 7 – Private professional and fee paying work
This is an odd schedule as it is our understanding that a doctor must be on the Specialist Register prior to being able to provide a private service with the exception of aesthetic medicine etc.
The pertinent point is that a doctor cannot be paid twice for their time hence work such as cremation forms or legal reports if done within NHS time must be paid to the trust. It is then up to the trust if they want to pay the doctor for this service.
Schedule 8 – Other conditions of employment
This schedule primarily tackles professionalism and a doctor’s duties with regard to conflicts of interest, research, confidentiality, raising concerns, publications, intellectual property and transfer of information.
Interestingly, the paragraph on raising concerns (AKA whistleblowing) states quite clearly that ‘a doctor should raise concerns in accordance with local policy, and will not be subject to any detriment for raising such concerns’. This is of particular importance considering the termination of the training number of a doctor-in-training after raising concerns about patient safety.
Schedule 5 – Leave
Annual leave entitlement runs from the date of appointment on a yearly basis. Initial leave will be 27 days rising to 32 days after 5 years service. You will still have to swap your on calls etc. and can only take leave on standard days. Less than full time employees will have leave amounts allocated in line with their employment commitments e.g. 50% = 15 days.
Fixed leave can be allocated if the doctor and employer cannot reach a compromise on the dates.
Any doctor doing any shift from 00:01 and 23:59 on a public holiday will be entitled to take a day in lieu. So for example, if you we on non-resident on call the day before because you have worked eight hours of the bank holiday you will be entitled to a day in lieu. Also, if a zero day falls on a public holiday again another day in lieu will be given.
Unfortunately if Christmas, Boxing day or New Years day falls on a Saturday or Sunday the bank holiday will role onto the next working day however this raises the concern that if Saturday is a normal day would we have to book annual leave for Christmas day?
Indications seem to be the same as on the current contract, allocations will be 15 days for FY1 and 30 days for all other grades. It is specified in article 29 that ’attendance at statutory and mandatory training (including any local departmental training is not counted as study leave) indicating that regional teaching programmes are exclusive of study leave allowance.
You can self certify for 1-7 days thereafter, you will require a sick note. Paid sick leave is as follows:
– During first year of service: One month full pay, two months half pay
– During second year of service: Two months full pay, two months half pay
– During third year of service: Four months full pay, four months half pay
– During fourth year of service: Five months full pay, five months half pay
– Five years service and after: six months full pay, six months half pay
This can be extended in exceptional circumstances at the discretion of the employer.
Sick pay may not be given if you have medical sickness cover where the combined sum would be more than if you were at work, if you receive damages from a third party, if you have an accident due to professional sport or where personal negligence is proven.
Sick leave taken for an injury in the line of duty will be paid but not accrued against your sick leave allowance.
You can have your contract terminated on grounds of permanent illness.
Schedule 10 – Termination of contract
Grounds for termination are based upon conduct, capability, redundancy, compliance with statue or statutory regulation, failure to maintain qualification, registration or place on GMC or if there is some other substantial reason to do so in a particular case. This last point is the most worrisome as this can mean just about anything.
There is a minimum notice of one months for FY1-CT2 and three months for ST3 and above or GP trainees.
Schedule 11 – Expenses
Excess travel expenses will be paid as any mileage additional to your base hospital in accordance with AA mileage released each year if this is agreed locally. Tolls etc. should also be reimbursed on production of receipts. Employers will also provide removal expenses if the doctor must move to take up their new post but this is prospective. Study leave including travel, accommodation and subsistence is also eligible under this contract.
Schedule 12 – Facilities
Doctors on call should have access to hot and cold food overnight and access to rest facilities away from patients. They should also provide an appropriate rest area for doctors doing non-resident on calls who deem it unsafe to travel home, if this is not available then alternative transport means should be sought e.g. taxi.
Schedule 13 – Sections of the NHS terms and conditions of service handbook applicable to doctors in training
This schedule pertains to NHS T&Cs that are common across all staff groups these have not changed with the new terms and conditions but I feel it is relevant to have a recap of maternity arrangements.
To be eligible you must have 12 months continuous service to the NHS at the beginning of the 11th week before the estimated delivery date of the child, you must have notified your employer in writing before 15 weeks of the EDD of your intention to take maternity leave, the date you want to start maternity leave and when you intend to return to work. You must also provide the MATB1 from your midwife with the EDD on it.
Before going on leave you must indicate if you are willing to ‘keep in touch’ which means occasionally popping into work to keep apprised of any developments and to ease transition back to work. You cannot work during mandatory 2 weeks of maternity leave immediately post partum.
You are entitled to 8 weeks of full pay, 18 weeks half pay plus any statutory maternity pay or maternity allowance then 13 weeks of just statutory maternity pay or maternity allowance.
In the event of a pre-term birth the maternity pay is the same. In the event of a still birth past 24 weeks your entitlement to maternity pay is the same as if the baby was alive. Miscarriages are classified as sick leave.
On return to work the NHS employer has a duty of care to enable flexible working.
Schedule 14 – Transitional arrangements (temporary schedule)
Basic salary with continue to rise incrementally for:
- Until exit of training
- Until three years of continuous employment have elapsed from the point the doctor was employed on these terms and conditions of service
- Until 5th December 2022
On arrival at the first of these three points the contract will revert to the new contract. For doctors in less that full time training the proportion of working will define the length of protection e.g. 60% would be five years pay protection or up until 5th December 2022. We will continue on as banded doctors for this time. For the purposes of banding plain/premium time will remain 07:00-19:00 Monday – Friday.
The banding arrangements appear to be the same as the current contract. Doctors taking OOPE or maternity leave will re-enter the programme as per the 2002 terms and conditions and most likely remain protected until 2022.
FY1 – ST2
Will have pay protection in the form of a ‘cash floor’ which they will not be paid less then until 2022, however, remembering that you will move up the nodal pay scale quicker than the ST3-ST7 bracket we suspect this form of protection is largely irrelevant. (Employers 2016)
A model contract:
NHS Employers has also released a model contact based upon the terms and conditions highlighted above. The majority of this document is a fill in the blanks from the terms and condition e.g, your job title is: your contract commences on: however there are some additional points worth discussion.
Section 2: commencement of employment and pay point I find difficult imagine working in practice. As a veteran of 6 years working in the NHS I am quite familiar with the current medical staffing logistical capability. Section 2.4 states that you will be given your work schedule and your salary will be amended accordingly. As many of us do not even meet with our AES until at least a few weeks into the job I find it hard to believe that there will be significant movement on this issue until well into the job.
Section 11.1: ‘If your work schedule requires you to undertake additional hours of work over and above the standard weeks of 40 hours, you will be paid at the rate of 1/40th of the full time equivalent basic pay’ If this isn’t more work for less money I don’t know what is!
Section 22: Variation – ‘we reserve the right from time to time in our absolute discretion to review, revise or replace any term or condition of this contract and introduce new policies and procedures’ This rather horrifying paragraph will give NHS Employers free reign over revisions to our contract without need for consent from the workforce! (Employers 2016)
Whilst there are some aspects of this contact such as having training needs in writing and not just a service provision contract that we can support the majority of it is not in the best interest of our membership. Trauma & Orthopaedics has had a historic misconception of being a male dominated specialty and we do not want to see all the work to encourage women into surgery be negated by short-sighted idealism. We also have grave concerns over the Guardian/exception reporting system putting significant onus on the trainee to disrupt the status quo and potentially being as a trouble maker in the process, to ensure trainees get paid for work provided. We cannot and will not accept any contract imposition and in light of this contract, we will continue to stand shoulder to shoulder with the BMA in it’s outright rejection.
- Employers, NHS. “Terms and Conditions of Service for NHS Doctors and Dentists in Training 2016 – NHS Employers Information for employers.” NHS Employers. 31/03/16. www.nhsemployers.org/your-workforce/need-to-know/junior-doctors-contract/information-for-employers (accessed 06/04/16).
- Employers, NHS. ” Model Contract – NHS Employers Information for employers.” NHS Employers. 31/03/16. www.nhsemployers.org/your-workforce/need-to-know/junior-doctors-contract/information-for-employers (accessed 06/14/16).
- Employers, NHS. “Work schedule template – NHS Employers Information for employers.” NHS Employers. 31/03/16. www.nhsemployers.org/your-workforce/need-to-know/junior-doctors-contract/information-for-employers (accessed 06/04/16).
- Employers, NHS. “Sample job description and person specification – NHS Employers Information for employers.” NHS Employers. 31/03/16. www.nhsemployers.org/your-workforce/need-to-know/junior-doctors-contract/information-for-employers (accessed 06/04/16).
- Deapertment of Health “Equality Analysis on the new contract for doctors and dentists in training in the NHS – Guidance: Junior doctors’ contract: euality analysis and family test” Department of Health. 31/03/2016. https://www.gov.uk/government/publications/junior-doctors-contract-equality-analysis-and-family-test (accessed 06/04/16)
- Deapertment of Health “Family test for the new contract for doctors and denstists in training in the NHS – Guidance: Junior doctors’ contract: euality analysis and family test” Department of Health. 31/03/2016. https://www.gov.uk/government/publications/junior-doctors-contract-equality-analysis-and-family-test (accessed 06/04/16)