The Junior Doctor Contract: An All–Encompassing Leadership Challenge

CHALLENGES AHEAD

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

The terms and conditions (T&Cs) of the 2016 Junior Doctor Contract agreed between the BMA and NHS Employers were published in May 2016 and will be put to a vote of the BMA membership shortly. It is not yet clear how the junior doctor community will vote in this upcoming referendum, nor is it clear what would happen in the event of a ‘no’ vote. NHS Employers and NHS Improvement have asked trusts to pause implementation of the new contract pending the referendum’s outcome, but have asked employers to continue appointing guardians of safe working (the Guardian) in the interim.

The T&Cs place several expectations onto individuals and bodies within the world of junior doctors. Assuming the contract’s implementation timeline is unchanged, these expectations and associated practicalities warrant attention now.

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Employers

Employing trusts have been subject to uncertainty during this industrial dispute. On the whole they have performed admirably, through workforce planning during junior doctor industrial action and commencing rapid implementation timetables following imposition. However, the real challenge for employers is the paradigm shift the new T&Cs represent:

  • The Guardian – the T&Cs enshrine new levels of accountability that are not ignorable by employing trusts. At a minimum, a trust’s Board must now consider a quarterly report from the Guardian, which will detail rota gaps and missed training opportunities, as well as mandating a non-executive director as the lead in scrutinising this process. In addition, an annual report must be submitted to the Care Quality Commission (CQC). These lines of accountability create the interesting position where should a death occur linked to rota gaps that the trust’s Board were informed about but failed to action, a charge of corporate manslaughter could theoretically be brought.
  • Exception reporting – in addition to the points above, employing trusts must create a robust and transparent protocol for exception reporting; a process where junior doctors submit notices of overtime hours, missed breaks and missed training opportunities for remedy or recompense. The most important consideration here is that junior doctors must be confident that using the exception reporting system will not lead to confrontation with supervisors and management. To maintain good working relationships with their local junior doctor workforce, an employer would do well to brand this as a prospective workforce-planning tool and ensure good relationships with their local negotiating committee (LNC).
  • Financial considerations – a move towards ‘pay for work done’ places uncertainty on medical workforce financing for employers. Apart from the general belief that hours of good will are numerous and unpaid, the amount of extra hours work that could be ‘billed’ for has not been robustly quantified. When compounded by transitional pay protection, a probable need to increase HR capacity to redesign rotas, creating work schedules and remunerating the Guardian, financial ramifications for an employer are a real risk and challenge the cost-neutrality claimed by this contract.
  • Rota design – the T&Cs set several new rules, including mandatory zero hour days and maximum numbers for consecutive long days/night shifts. It also suggests moving away from fixed leave practices, and states leave is to be granted for ‘life-changing events’ (e.g. weddings). The challenge here is that the expectation from the Government is to roster more junior doctors over weekends. However with a workforce of a set size, more stringent rostering rules in place and the apparent unintended consequence of a weekend supplement actually increasing the hourly rate of a doctor at weekends relative to weekdays, this may exacerbate current rota gaps across the week as well as making weekend rostering more expensive.
  • Junior doctor fora – the performance of all these structures are proposed to be scrutinised by junior doctor fora. Bolstered with new contractual powers and in keeping with the politicisation of junior doctors during this industrial dispute, employers should assume that these fora will actively hold employers to account in conjunction with their LNCs.
  • Fidelity clause on locum work – the poor financial state of the hospital sector led to regulators introducing the agency locum caps. The new T&Cs require trainees to offer, in the first instance, locum work via internal NHS staff banks at (currently) 122% of the prevailing hourly rate. Given the improved hours safeguards in the T&Cs, there is a risk that existing rota gaps are exacerbated in order to comply with new rostering rules. Employers may be heavily reliant on internal and agency locums to maintain service provision. They must find a way to mitigate this through an intuitive interface of their internal staff banks (to be agreed with the LNC), as well as clear guidance on when to breach caps to preserve service provision. This may go some way to address how this clause has been received by the junior doctor community; an apparent attack on professional time management autonomy that may see some avoiding locum work all together.

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The Wider System

Several bodies are referenced in the proposed T&Cs. Their inclusion looks to address the extra-contractual morale issues that have come to attention during this industrial dispute.

  • Health Education England (HEE) – The workforce planning arms-length body is frequently referenced within the new junior doctor contract. They must review the current system of inter-deanery transfers with a view to allow couples to stay in the same geographical area, they must work with NHS Improvement to implement lead employer models and they must not subject junior doctors to ‘detriment’ if they raise concerns (whistleblowing). Whilst a proposed contract review in two years will hold HEE to account against these points, the latter demands closer attention. It can be argued that HEE has considerable power over a junior doctor’s career; paying a substantial amount of their salary, arranging placements, determining progression through postgraduate programmes and educational oversight to name but a few. However, they are legally not an employer or employing agency and therefore exempt from the Public Interest Disclosure Act – the whistleblowing protection within the new T&Cs therefore has no legal basis. There is an increasing junior doctor voice calling for HEE to be considered an employer and therefore legally accountable to all that the Employment Rights Act details. HEE must consider carefully how they proceed in this matter or risk losing credibility in the eyes of junior doctors and a Government that champions openness and transparency.
  • NHS Improvement – the hospital regulatory body has been tasked with oversight of contract implementation across England and working with HEE to move towards lead employer models. Given NHS Improvement’s accountability over hospital performance, which is affected by its junior doctor workforce, as well as the large number of expectations placed onto HEE, one should assume that the remit of NHS Improvement will only expand. They will need to prepare for this eventuality.
  • The BMA – broadly (but not officially) the BMA Junior Doctors’ Committee endorses the new junior doctor contract. Their members will look to them to provide a ‘beefed-up’ contract checking service, better training for their regional junior doctor committee chairs, a widening remit and support for LNCs and representation as needed for Guardian disputes. Though slow on the uptake the BMA have also been open that the new T&Cs will lead to a decrease in career earnings for less than full time trainees (LTFTs) in some cases when compared to those on the current contract. The BMA’s membership will expect them to lobby and campaign effectively to mitigate this disadvantage of the new T&Cs. Intentions to pro-rate professional fees, such as Royal College memberships, examinations, defence union and BMA subscriptions themselves are welcome, but are only a start.
  • The Government – despite NHS Employers’ initial scoping document prior to contract negotiations opening in 2013 making no mention of the current Government’s manifesto commitment for a ‘truly 7 day NHS’, the Government has linked these contract negotiations with delivering this ‘7 day NHS’. The Government’s chief negotiator, Sir David Dalton, stated the junior doctor workforce needed the ‘least work’ to deliver a 7 day NHS as they already worked evenings, weekends and nights. In keeping with national policy, consultant presence (senior decision makers) and access to diagnostic tests are currently the focus in improving emergency care across the week. Given these assertions, the Government is under pressure to show and measure how this contract will support delivery of a 7 day NHS. The bitter nature of the junior doctor dispute will only make consultant, GP and other healthcare profession contract renegotiations challenging. The Government must re-evaluate their approach if they are to achieve the workforce transformation they aspire to.

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The Medical Profession

Medical professionals have been considered passive and rarely spoke with one-voice on non-clinical matters. The current industrial dispute has shifted this baseline, affecting both junior doctor and consultant groups. It can be argued that the new T&Cs give the medical profession avenues to ‘take back control’, however this is completely reliant on doctors engaging with these opportunities.

  • The Guardian – this is likely to be a position employers will find challenging to fill. A newly created role with untested lines of accountability, guardians may find themselves ‘policing’ disputes between junior doctors and consultants, as well as managing pressure from the employer around granting payments or time-off in lieu (TOIL) within the context of rota gaps. The Guardian will have to earn the trust of both the junior doctors and consultant colleagues they work with and effectively manage the post’s workload given the limited programmed activities (PAs) employers are offering for these roles.
  • Educational Supervisors (ESs) and Directors of Medical Education (DMEs) – both of these pre-existing roles will take on further responsibilities under the new T&Cs. The ES will receive exception reports from the trainees they supervise and will have to action them, with the Guardian also notified. If the exception report refers to missed training opportunities, the DME is then involved. Given both these roles have existing remits on training junior doctors, these new responsibilities may pose conflicts of interest. Both need to be clear how they separate mentoring, training and pastoral support from the exception reporting mechanism and then be open and transparent to junior doctors about it.
  • Junior doctors – they must be engaged in the whole process for the T&Cs to work as intended. Without effective junior doctor forum leadership, engaging in the exception reporting process, maintaining relationships with DMEs, ESs and the Guardian and holding senior colleagues to account, the opportunity for control afforded by the new T&Cs will be squandered. Junior doctors must harness their current move away from passiveness, and then maintain it going forwards.

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Where to next?

This iteration of the T&Cs places expectations onto several national, regional and local bodies, as well as professionals within the medical world. Given the implementation timetable, employers and staff will experience the T&Cs from August. It can be argued that the most salient change will be achieved through the actions of the medical profession, including junior doctors, DMEs, ESs, consultants and the Guardian. Collectively, they have the ability to repair relationships within their profession, hold employers and national bodies to account and, through the exception reporting system, quantify the workforce gap that exists and force policy makers to address it. Doing this may lead to a better service offered by medical professionals within the NHS. Such benefits will not only be felt by staff, through improving morale, recruitment and retention, but also to patients – the voice that has been lost throughout this industrial dispute. If this contract is implemented under whatever circumstances, all doctors will have the opportunity to take control at a local level. The question is whether or not they will take it.

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Down The LTFT Pay Rabbit Hole…

Bix

Guest blogger Helen Jawahar returns following her previous post on indirect discrimination in the new junior doctor contract. Here she examines how LTFT pay is calculated on current terms and conditions and how this varies when the new terms and conditions are applied. An abridged version of this post appears in the junior doctor contract forum to encourage debate.

**UPDATE** Formal modelling verification by The BMA was prompted as several doctors  highlighted concerns on hourly pay equality between LTFT and FT trainees. The BMA JDC met on 03/06/16 and shared information from that meeting on Facebook stating that LTFTs would be paid at the same rate per hour with respect to their FT colleagues.

Firstly let me say I am saddened to be writing a post about equal pay rights for women in 2016. This should be dead by now. I was fairly upbeat about the contract last time I posted, however further modelling and clarification has made me sad again; it looks like we are again looking at a contract that pays LTFT less per hour than their full time counterparts for the same job. Its still not as bad as the imposed one and I don’t believe it is quite as bad as some have made it out to be.

My last post started a war over LTFT pay which isn’t that surprising. The new contract means some very big LTFT pay changes, the question is are these changes fair? What did surprise me from my last post was the amount of replies from people who didn’t know their rights or had had these rights trampled on by their employer. So in an aim to inform and hopefully prompt civil debate on what on earth we should do next lets dive in to answer:

  1. How are LTFTs paid now; and
  2. What’s good and bad about that?
  3. How will LTFTs be paid under the new contract; and
  4. What’s good and bad about that?

As before I am just an ordinary LTFT trainee. I don’t work for the BMA or the government. There are people out their who are much more informed on these issues than me – hopefully some of them will come along and comment. I’m in a way really hoping I have got something wrong on the current pay calculations that someone can pick up that will make this all better – if you spot an error let me know and I’ll correct and send you good vibes.

How are LTFTs paid now?

So before I became an LTFT all of 7 months ago (I’m a newbie at this) I thought it was simple. You work a percentage of full time and get paid that percentage of the full time pay right? –WRONG

To understand what you should be paid as an LTFT you need to know:

Lets say you are just starting ST1. It’s a 1 in 8 rota and the full timers work 48 hours a week. They do 1 in 4 weekends and 7 nights (2200-0800) and 7 long days (0800-2200) in an 8 week cycle which bands them at 1A You did FY1 and FY2 in one year each so you are at the minimum pay point for ST1. You are going to work 60% of what a full time person does which would make you 1 in 13 working 1 in 6.5 weekends .

So 60% of 48 hrs is 28.8 hrs. This means looking at the helpful table in EPFFMT you will be paid at F7 and get 70% of the full time basic salary (what I hear you cry why not 60%? Well as clear as I can make it, this is because banding for FT trainees reflects extra hours over 40/week and intensity a for LTFT it only covers intensity so all hours need to be covered in the base salary

To calculate the basic salary now you look in the PCC and look for the basic pay for an LTFT ST trainee on the minimum pay point at F7 – that’s £21,212 (which should and does work out as 0.7 of the ST1 FTE basic of £30,302)

Now to work out the banding. The key thing here is that the banding is worked out on the intensity of the work the LTFT trainee does independent of the banding the FTEs work. It’s often the same as the FTE banding but it doesn’t have to be. There are three bands (and un-banded):

  • Band FA – 50% – trainees working at high intensity and at the most unsocial times.
  • Band FB – 40%– trainees working at less intensity at less unsocial times.
  • Band FC – 20% – all other trainees with duties outside the period 8am to 7pm Monday to Friday.

There is a really nice flow chart in EPFFMT which I suggest looking at which tells us that out hypothetical 60% ST1 is going to be band FA because they work a more than 1 in 13.5 on pattern and their shifts go past 7pm.

This means they get 50% of their pay again. This can be found in the PCC as £10606 (0.5 x 21212) and then gives the total pay per annum as £31818 (10606 + 21212).

Wasn’t that simple (hah hah). The thing to realise here that this figure is more than 60% of the salary paid to a FTE doing the post above. If the FTE were also ST1 on the minimum pay increment banded 1A they would be earning £45,453 per annum. 60% of this salary is £27271.80 – this is over 4.5k a year less than what the LTFT actually receives.

This leads on to my second point question – what is good and bad about the current arrangements?

If we compare our two ST1s above and work out their hourly rate using a very basic calculation. The FT trainee earns £18.21per hour (45453/(48×52)) and the LTFT earns £21.24 (31818/(28.8×52)). So on cumulative hourly pay the LTFT earns more per hour.

However the FT will still earn more in total over the year because they work more hours overall. Look at this over a career’s worth of earnings and you have a fairly massive pay gap between the FT and the LTFT. As LTFTs are generally either LTFT because they are female and caring for children/others or in ill health themselves (or like me…both!), this means over a lifetime we have a system that creates a pay gap between men and women/disabled i.e. the average male doctor will earn more in their career than the average female doctor. Also the LTFT trainee will have to pay all the standard costs of training e.g. GMC/defence union/exams/car parking etc and very few of these are reduced pro-rata so they have proportionately higher costs.

The current system attempts to mitigate this further using automatic pay progression (actually I’m not sure if it was designed this way or is a happy accident – maybe someone more educated can let me know). Automatic pay progression means all trainees move up a pay increment per chronological year, meaning that the LTFT still goes up the pay scale even if they don’t move up training grades at the same rate as FT trainees. This reflects the increased experience the LTFT has due to being in the job longer.

All of this means the current set up is generally considered to be very good for LTFT. Its more than equal, it’s a long way towards being equitable even. However the flip result of this is that currently a FT trainee can end up being paid a lot less per hour than their LTFT counterparts. The example we worked out earlier shows this but this can be taken to the extreme due to the way the increments work.

If we use the same rota as before but look at two ST5 trainees one FT all the way through training and one who has been 60% LTFT since F1:

  • The FT trainee has been a doctor for 6 years placing them on increment point three on the PCC.Pay for them is £ 60135, working out at an hourly rate of £60135 / (52×48) = £24.09.
  • The LTFT trainee has been a doctor for around 14 years. Due to annual increments they will now be at the top of the ST pay scale (increment point 9) and earning £50030 works out at an hourly rate of 50030 / (52×28.8) = £33.39

This means the LTFT trainee is earning £33.39 – £24.09 = £9.30 per hour more for the same job at the same grade.

In my opinion this is one hell of a lot of positive discrimination. I’m not sure that this can continue to be justified as more and more people become LTFT including men. At what point do we end up going past equity and just plain discriminating against full time workers? As gender norms change, what if we get to a situation when there are just as many men as women working LTFT? How can we claim that this is equitable then? What about the women working FT? Some of them have children and childcare too, why should they get a lower hourly rate?

In a way that is all moot (though it helps us see where we are coming from and what some current trainees have to lose financially) because the government hate automatic pay progression (not for this reason I must add but because they just hate the idea that anyone gets a rise every year)

So we are now looking at the brave new world of the proposed contract without automatic pay progression and without banding – if you thought LTFT pay was hard to work out before, it gets worse…

How will LTFTs be paid under the new contract?

Well after the pain that was the planned imposed contract I had high hopes for this one. I knew increments were going and so was banding. What I wanted to see was a contract that paid the same rate per hour to both FT and LTFT trainees.

The new contract is more complex than the old for both FT and LTFT.

All the information I have used comes from the “Terms and Conditions of Service for NHS Doctors and Dentists in Training 2016” (new TCS);

And the “Indicative pay summary”(IPS).

Pay is now calculated from a combination of different numbers:

  1. The base pay for 40hrs a week (check ICC)
  2. A variable weekend allowance if applicable (check ICC)
  3. A 37% hourly uplift for all hours between 21.00 and 0700 (plus 37% for any hours up to 1000 for shifts that started no earlier than 2000) (p11 new TCS)
  4. Extra hours at basic rate (p10 new TCS)

So lets go back to our ST1s from the first example. We need to know a bit more about their rota to calculate pay this time so I have assumed that for full time in the 8 weeks they would work an average of 48 hours per week, 2 weekends (1 in 4 weekends, one on nights and one on days), 7 nights (2200-0800) and 7 long shifts (0800-2200). Basic hourly pay £17.31. I have also assumed that the LTFT does the same 60% of both the basic hours and OOH. No flexible pay premia are applicable.

FT trainee is currently band 1A 48hrs/wk earning £45,453 per annum at £18.21per hr

  1. Basic Pay for 40hrs £36,100 (nodal point 3)
  2. 7.5% of full time salary for 1 in 4 weekends 0.075 x 36100 = £2707.5
  3. 37% hourly uplift for nights (11 hours of the night shift. 7 nights per 8 weeks or 45.5 per year which means they will get an uplift for 45.5 x 11 = 500.5 hours (0.37 x 500.5 x 17.31 = £3205.55)
  4. 8hrs per week extra at basic rate (to make up the 48hr week) is 8 x 17.31 = £138.48 (then x 52 for annual figure = £7200.96)

Yearly total = £49214.01 (more than current YAY!)

Hourly rate for 48hrs per week £19.76 (more than current YAY!)

LTFT 60% is currently F7FA for 28.8hrs/week earning £31,818 per annum and £21.24 per hr

  1. 60% of the full time salary (0.6 x 36100) for 24hrs = £21660
  2. 4% of the full time salary for 1 in 6.6 weekends (0.04 x 36100) = £1444
  3. 37% hourly uplift for all nights – The full time trainees work 500.5 hours per year so 60% is 300.3hrs (300.3 x 0.37 x 17.31) £1923.33
  4. 8 hrs extra per week at basic rate to make 28.8hrs 4.8 x 17.31 x 52 = £4320.58

Yearly total £29345.90 (£2472.1 less than current BOO! AND also less than 60% of the FT total pay (0.6 x 49214.01) = £29528.41 (£182.51)

Hourly rate for 28.8 hrs per week £19.59 (£1.65 less than current BOO!)

Hanging in there everyone? Lets look at the final bit…what’s good (if anything) and bad about that the proposed contract?

 Comparing to the old contract the FT trainee does better under the new system and the LTFT does worse. This will be magnified to the extreme as you move along the training pathway and the removal of the annual increment begins to bite. The front loading of pay to ST3 should help with this somewhat as it helps reach max pay sooner, but to what extent still needs to be modelled (and I don’t feel confident enough in my workings to do it – we need some nice colour coded BMA graphs) but I am sure that the gap between what the average male doctor and the average female doctor earnings will now increase. There are some good posts out their on the forum that delve into this further.

This was somewhat to be expected; we knew that removal of increments was not going to be nice for LTFT, but there was an argument to be made that it was too much positive discrimination at the expense of full time trainees. Personally, I feel on the increment point that I do fewer hours work overall than my full time counterparts and I accept this means over a lifetime I will earn less. However, I have got the time I needed to recover from my illness. I will have the time I want to spend with my baby as she grows up. I have benefited and will benefit from being LTFT in many ways other than pay. I hope that accelerated training and dedicated study funding may help this a bit.

The elephant in the room is of course those LTFT trainees already far into the current system that will not benefit from the front loading, but not in far enough to complete their training on pay protection(which only lasts until 2022). These people are currently forecast to see a large pay cut in their ST8 year. The BMA tried to negotiate a pay protection to the end of all current trainee progression but the government will not commit until after the next election. There is, as I understand it, a review due for 2018 on this issue, but it is a big leap of faith/an unknown for those trainees that this might be sorted.

The most important point for me is does the current contract deliver equal total pay per hour to the LTFT trainee compared to the FT. Well, on my working, not quite. The LTFT ends up earning £0.17 less per hour than the FT trainee;17p you are going to think, that’s not very much, but it’s the principle. The LTFT trainee (doing 60% of the work remember) now earns less than 60% of the FT trainee’s total wage. This doesn’t seem fair at all. If you thought that it was unfair under the current contract that the LTFT earned more than their percentage of the current wage or earned more hourly, remember that was mitigated by them earning less per year and less over a lifetime.

We now have a situation where the LTFT working at a percentage of full time will earn less than that percentage of the total full time pay, meaning they earn less per hour. So they earn less per hour, less per year and less per lifetime. I can cope with earning less per lifetime but not per hour. If I do 60% of the work I deserve 60% of the pay. I am not worth less per hour because I am female or because I have an illness that makes me unable to work full time.

I appreciate the differences I have calculated are very small but do we really want to set out the principle that LTFT trainees are worth less than their FT counterparts? I also fear that the small difference I have calculated will be bigger on less intense rotas (on some very high intensity ones they disappear).

So I will end with a plea to the BMA and to you all;

  1. Please can the BMA do some more modelling/calculating and hopefully prove me wrong. I really want someone that is better at maths than me to show I am wrong and then I can wake up back in this century where we pay men and women equally.
  2. If you are an LTFT trainee, please model your own rota using the information in the TCS and my blog post. Are you going to be paid less than you are now? Can you accept that might be fair? Are you going to be paid less per hour than your full time counterpart? Can you accept this?
  3. And if you are not an LTFT, do you think removal of positive discrimination is tolerable? Do you think less pay per hour for LTFT compared to full time is fair (I hope not)?