Indirect discrimination within the proposed junior doctor contract – an analysis

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This guest post is courtesy of Helen Jawahar, a less than full time (LTFT) ST2 paediatrics trainee. It discusses her interpretation and personal views regarding how indirect discrimination has been addressed when the imposed junior doctor contract (February 2016) is compared with the negotiated settlement awaiting a referendum vote (May 2016). It tackles how weekends and NROC are remunerated, maternity arrangements and pay progression. This was initially a post on the junior doctor contract group on Facebook – the author agreed to post onto this blog for wider sharing.

DOI: Helen Jawahar is married to the author of this blog. She is a BMA member and has no other relevant affiliations to declare.

**Addendum** 31/05/16

As explained above, this blog is adapted from a thread started on Facebook’s junior doctor contract group. Ensuing comments highlighted possible fallacies in weekend pay modelling for LTFTs – where lower intensity WTE rotas would either see weekend working frequencies for LTFTs low enough so that no uplift is payable or that the lower uplift applicable does not equate to an LTFT’s full-time counterpart; in essence an LTFT would be paid less per hour at the weekend compared to their full-time counterpart. This has been escalated to the BMA and is under investigation.

I am currently a 50% LTFT trainee on paediatrics and 29 weeks up-the-duff – so the issue of maternity, pregnancy and LTFT are a massive concern for me. I was so angry at the contract they were going to impose as it was the biggest pile of sexist BS I had ever read. It discriminated against you if you were pregnant, if you had time off to have children, it allowed you to be paid less for being LTFT and then went on to suggest that it would all be ok because our husbands/partners would look after the kids on the weekend! I was prepared to fight that contract forever. I have seen so many posts saying that this proposed contract is just as bad, namely that:

  1. If you have to stop being on call when pregnant you will get a pay cut and therefore also less maternity pay – NOT TRUE
  2. If you work LTFT you will not be paid for working weekends – NOT TRUE
  3. If you are NROC you will be paid less – Probably NOT TRUE
  4. We are losing automatic pay progression – TRUE but somewhat mitigated by the flattening of pay scales

Please note I don’t work for the BMA, I’m not an employment lawyer and I’m not trying to tell you how to vote, but I have seen so much misinformation about the proposed contract and maternity that I felt I had to post something as a lot of people are becoming upset and worried about issues that don’t exist.

On Calls and Pay When Pregnant

In the proposed contract in schedule 13, paragraph one it states that “NHS Terms and Conditions of Service Handbook” will govern maternity leave and pay. These terms and conditions can be found by clicking here. They state:

Health and safety of employees pre and post birth:

15.34 Where an employee is pregnant, has recently given birth or is breastfeeding, the employer must carry out a risk assessment of her working conditions. If it is found, or a medical practitioner considers, that an employee or her child would be at risk were she to continue with her normal duties, the employer should provide suitable alternative work for which the employee will receive her normal rate of pay. Where it is not reasonably practicable to offer suitable alternative work, the employee should be suspended on full pay.

15.35 These provisions also apply to an employee who is breastfeeding if it is found that her normal duties would prevent her from successfully breastfeeding her child.

I know these are the Agenda for Change T&Cs – it looks like we will finally be counted as equals to all other NHS employees – YAY). This makes it clear that you

  1. Will not get a pay cut if you have to stop on calls due to being pregnant; and
  2. You will not get a pay cut if you have to stop on calls due to breastfeeding or if you can’t do a 12-hour operation as you need to express (and similar clinical situations).

Working Weekends

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See screen shot above. LTFT will be paid a percentage of the FULL TIME SALARY depending on how many weekends they work. As I understand it, this is better than how banding works now where we are paid a percentage of our LTFT salary depending on our out-of-hours commitments. Yes we may get a lower percentage than our full time colleagues but we will be working fewer weekends so that seems fair to me. If due to some quirk in the rota design you work 1 in 2 weekends you will be paid exactly the same allowance for this as a full time trainee working 1 in 2. This stops the issue that the imposed contract had where it made it cheaper to rota LTFT trainees on the weekend than their full time counterparts.

NROC

(N.B. I have only worked NROC when full-time and not as an LTFT – so if I don’t have a full grasp of the issues I apologise in advance). My understanding of NROC LTFT pay under the imposed contract was that the availability allowance was to be paid at the trainee’s proportion of full time, so say they are 60% they would get 60% of the allowance. However as LTFT on call commitments are often different from their in hours banding (i.e. they do more than 60% of the on calls), they would have been working for less per hour than their full time counterparts – obviously unacceptable. The new contract says this in schedule 2 “Arrangements for Pay”:

10. For doctors employed on a less-than-full-time basis, in any grade, the value of the on- call availability allowance shall be paid pro rata, based on the proportion of full-time commitment to the rota that has been agreed in the doctor’s work schedule. For example, a doctor making a 50 per cent contribution to the rota would be paid 50 per cent of the value of the availability allowance paid to a doctor making a full contribution to the rota.

My reading of this is that you will be paid a percentage of the availability allowance based on the proportion of on-calls you do and that the percentage will be of the full time salary. If this is the correct reading then you will not be paid less per hour than those on the rota that are full time. I agree that the wording is not as clear as it could be and this is something the BMA should seek to clarify with NHS employers (P.S. you can still argue that the allowance is terrible but it doesn’t seem to be discriminatory anymore – at least in my eyes).

Pay Progression

Automatic pay progression is what we have under the current contract. Our pay goes up every calendar year we work. Crucially it goes up whether this year is worked LTFT or Full Time. This means that if you had two trainees who were ST3, one full time and one LTFT at 50% since the start of specialty training, the full time one would be paid £34,746 base pay (increment point 2 of the specialty registrar scale) and the LTFT one would be being paid 50% of £38,200 =£19100 (increment point 4 on the pay scale).

Some people thought that this was unfair as the LTFT trainee was earning more per hour than the full time trainee despite them being the same grade. Other people feel that this was fair because the LTFT trainee would have more experience as they had been working longer. Also this can be viewed as POSITIVE DISCRIMINATION toward those that had caring responsibilities (mainly women) and those with health issues. The government really wanted to get rid of automatic pay progression in the negations because it costs them money and they want to link pay rises to increases in grade/level of responsibility (this is a separate issue from annual pay rises due to inflation that the DDRB recommended doctors and dentists receive every year and the government routinely ignore). In any case, automatic pay progression is a government red line. It doesn’t appear to be something we can negotiate our way past.

The issue with losing automatic pay progression based on calendar years worked and basing it on grade/level of responsibility is that it will take the 50% LTFT trainee twice as long to go up each grade and therefore twice as long as the full time trainee to get a pay rise. This is indirect discrimination because it’s not directly paying the LTFT trainee less for work done but it does mean that it will take an LTFT trainee (disproportionately more women) much longer to rise to the top of the pay scale. The BMA recognised this in their negotiations and have tried to mitigate the loss of automatic pay progression by a few methods:

  1. Flattening of the pay scale post ST3 – the top of the pay scale is now ST3 (45,750 full time) meaning that the LTFT trainee will get there sooner than if it went up every few years. In a way they have got rid of annual increments by just paying us all of the increments at once! (Not commenting on senior decision makers here as there isn’t enough info)
  2. Accelerated Training Support – this is new money (outside the cost neutral envelope – so it’s not cost neural is it then Jeremy!) to support those who take time out of training to help them catch up. My understanding of this is that if you can show that you deserve to go up a grade sooner than the strict chronological time required would say you could, you will be afforded that opportunity. I can also see how this would help if you miss out on training due to being off due to caring or illness. For example my APLS expires when I am on maternity leave, hopefully I can use some of this extra money to take it again without using up my whole study budget. I had some considerable time off sick a few years ago and had to run around like crazy trying to catch up before my ARCP – extra funding for courses I had missed and support in catching up with assessments would have been welcome.

Conclusion

The proposed contract is a lot better than the imposed one with regards to discrimination. There is a noticeable change in tone especially if you compare the equality impact assessment and the new equality statement. The new one makes some sensible suggestions on making things better for LTFT and those with disabilities. In addition we will be pay protected if we have to change specialties due to disability or caring responsibilities. Health Education England (HEE) are going to look into fixing inter-deanery transfers for doctor couples so we may see our children and partners more. We have much better relocation expenses so we can move our families with us when our training rotation sends us two counties away. It’s not perfect but I think it is better.

Specifically I think it is good enough that I can accept it on an equality for women point of view. I could vote yes to this (i.e. this point) and not feel I have betrayed female-kind, and more importantly I don’t think I could strike further on this point. In a way I feel we have won a small victory. As a profession we said NO to the sexist BS and they (the government) have had to remove said sexist BS. However if there is anything I have missed please let me know. If I am wrong and have missed some horrid discrimination tucked away in some of the 81 pages please let me know so I can revise my opinion and edit this post.

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The Whistle Blowing ‘Lacuna’

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Whistle blowing protection is afforded to junior doctors against their employer under the Public Interest Disclosure Act. The current case of Dr Chris Day highlights the unique relationship junior doctors have with Health Education England – proceedings thus far have uncovered an apparent loophole to this whistle blowing protection. This post aims to summarise the current position, how it relates to practicing junior doctors and suggests how relevant stakeholders can enact solutions.

This post reflects my personal views and not necessarily those of any of my affiliations.

Context

Any doctor registered with the General Medical Council (GMC) has a duty to raise concerns where patient care is or has the potential to be compromised, as outlined in Good Medical Practice. This may take the form of ‘whistle blowing’ – where a worker passes on information concerning wrongdoing in their workplace to their employer. Those who blow the whistle receive protection against detriment and unfair dismissal from their employer under the Public Interest Disclosure Act 1998 (PIDA). This extends to junior doctors between them and their employing trust/GP practice, even with the itinerant and rotational nature of their posts.

The Problem

The much-publicised case of Dr Chris Day has cast doubt over the protection that junior doctors have when raising concerns. In this instance, raising concerns against dangerous staffing levels led to a series of events that ultimately led to the deletion of Dr Chris Day’s National Training Number (NTN). Junior doctors that have entered specialty training (i.e. a post-qualification training programme that culminates in GP or consultant status) are assigned an NTN with an accompanying training programme and must meet certain competencies each year to progress to the next stage of training. As long as these competencies are met, the NTN is retained and relevant clinical placements ensue until GP/consultant level is reached. If a junior doctor were to fail in meeting these competencies, they can ultimately be made to leave the training programme – often subjectively viewed as dismissal from their employment.

Whilst a junior doctor’s clinical work and training happens typically within a trust or GP practice (the employer), another body is responsible for assessing progression through training programmes – Health Education England (HEE). HEE are an arms-length body to the Department of Health tasked with workforce planning for the NHS. In Dr Chris Day’s case, he argues that he suffered detriment at the hands of HEE, resulting in the deletion of his NTN. However, HEE are not legally considered as an employer, and therefore the supposed detriment Dr Chris Day faced was not subject to PIDA, the same view held by Mr Justice Longstaff at an Employment Appeal Tribunal ruling against Chris Day in February 2016.

Interestingly, the judge made an observation referring back to the Employment Rights Act 1996 (ERA) and specifically to Section 43(k), which discussed what constituted a ‘worker’ (and thus someone that would receive protection under PIDA). There is detail here that includes several different types of worker, including those affiliated to higher education institutes (e.g. student nurses) and those working for agencies. There is however nothing that accurately describes a junior doctor’s relationship with HEE. Dr Chris Day argued that HEE acted as an employing agency for junior doctors, but this line of argument proved unsuccessful. The judge concluded that this omission of junior doctors and their relationship with HEE must have been deliberate on the part of Parliament.

Deliberate Omission

Whatever the detail of Chris Day’s case, a gap (or ‘lacuna’) in the law has surfaced that subjectively affects a junior doctor’s ability to raise concerns:

  • It is still the case that a junior doctor has protection under PIDA from their employer should they blow the whistle.
  • PIDA does not apply to HEE as they are neither an employer nor an agency.
  • Junior doctors place great salience on their NTNs – if it is the case that whistle blowing proceedings have the potential to affect their ability to progress through a training programme, and in some cases have an NTN deleted resulting in removal from that training programme, then a situation arises where junior doctors will think twice about raising concerns.
  • This hesitation to carry out duties expected under the GMC’s Good Medical Practice will only serve to negatively affect patients and halt/regress service improvements.

 

The Solutions

The apparent loophole that has surfaced requires action from several relevant stakeholders. The suggestions below are based on the current available evidence.

  1. HEE – as HEE is not an employer, they are exempt from PIDA. However they must acknowledge that they hold considerable power over a junior doctor’s career. In the absence of changes to legislation, HEE must create a robust internal policy to support junior doctors subject to whistle blowing proceedings. Junior Doctor NTNs must be held unless there are compelling reasons not to do so. If progression is not being achieved at the appropriate rate, then pragmatic case-by-case decisions should be made at annual appraisals with due consideration to how whistle blowing proceedings may contribute to this. HEE must also issue guidance to junior doctors they oversee, removing ambiguity and uncertainty from the situation that has arisen. In short, HEE would do well to offer individualised ‘customer service’, and practice the essence of PIDA in the absence of the legal compulsion to do so.
  2. GMC – as the regulator of doctors, the GMC carries considerable lobbying power and are well placed to actively campaign for the closure of loopholes to raising concerns. They can exert influence over Government to amend legislation, place expectations on HEE (as detailed above), and make changes to undergraduate and postgraduate curricula to educate doctors on the legal context in which they work. This can extend to educating the public on a doctor’s duty to whistle blow via patient representative organisations and patient safety organisations. As with HEE, the GMC must also update/publish guidance for doctors given the occurrence of these events.
  3. The British Medical Association (BMA) – like the GMC, the BMA carries significant lobbying power. They have the ability to create policy to find and lobby for the closure of loopholes to whistle blowing protection. This can be successfully done separately to their legal representation service offered to members. The BMA are well placed to lobby HEE and the GMC to issue/update formal guidance to junior doctors given the occurrence of these events.
  4. Government – the fact that a judge concluded that junior doctors must have been omitted intentionally from S43(k) of the Employment Rights Act is concerning. The Government must seek to define the relationship junior doctors have with HEE and instil this into legislation to afford relevant legal protection under PIDA.
  5. Doctors – as a profession, doctors must be well-versed on the legal aspects of their clinical practice. Curricula are already packed and service-provision means training time is precious, but without making a commotion on what they need to know about, training will not be relevant to their needs to practice effectively.

Whilst Dr Chris Day mounts further appeals, there is much detail about his case that is not in the public domain. It can be argued that the detail of his case is irrelevant, but that this and other loopholes must be closed to enable junior doctors to raise concerns effectively to benefit patients.