The junior doctor contract: we now need strong leadership at all levels

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This article covers the author’s personal views of where the medical profession stands following the outcome of the junior doctor contract referendum. It builds on a previous post to this blog, and was adapted for publication in The BMJ. The text below is the unedited version.


 

Kaanthan Jawahar says that junior doctors, having voted to reject the proposed new contract, now need to work with another and with senior colleagues to tackle the problems that lie ahead.

The EU referendum result has set a mandate to split the UK from the EU. An uneasy feeling followed, where those voting to remain bemoaned the far right and older electorates for dictating their future.

Yet it was the disenfranchised working-classes hedging their bets on uncertainty by voting to leave that influenced the outcome. In their eyes, anything was better than preserving the status quo that austerity had given them.

I see parallels in this group when I consider my junior doctor colleagues. Years of discontent, increasing workloads, decreasing training opportunities, bureaucratic e-portfolios, and worsening work-life balances are why morale is rock bottom. The contract dispute is simply the latest in a long series of changes that have worsened junior doctors’ working lives. It’s no wonder the contract was rejected, though in this context the Government is pressing ahead with introducing the new contract despite the outcome of the vote.[1,2]

I voted to accept the new contract. I believed it offered a chance for the medical profession to take back control. Through exception reporting, barriers between frontline junior doctors, guardians of safe working, directors of medical education, and educational supervisors would be broken down. This could be a powerful workforce planning tool to quantify rota gaps, forcing employers to act via contractual board and national-level accountability frameworks. Our supervisors would be performance managed by new and pre-existing junior doctor fora bolstered with contractual remits and powers.

I believe that the proposed payment structure, though complicated, is fairer than what we have now and that the contract goes as far as it can on whistle blowing, with the ultimate endgame being legislative change. I’ve even reconciled that the removal of automatic pay progression will adversely affect some less than full time trainees (LTFTs). Many disagree with me on this, but I worry that ‘paying off’ LTFTs detracts from the underlying problem – that society and medicine discriminates against those needing to work less than full time. We should re-focus our efforts into supporting these LTFTs into full-time work where possible.

I may be overly optimistic. Many colleagues cannot fathom a world where exception reporting works, where relationships with our senior colleagues improve, where employers act to fill rota gaps, or where medical staffing pay us for all work done. They view me as deluded or as an apologist.

This divisive feeling could be the downfall of junior doctors. We are not each other’s enemy, but we risk becoming exactly that. No one comes to work to do harm. There are good senior colleagues out there and employers rarely, if ever, set out to do the wrong thing.

A leap of faith is required now with strong leadership, both from the BMA nationally, but also the very junior doctors that were on the picket lines locally. I see a world where the leaders are those on the junior doctor fora, who hold employers to account, who show their colleagues that it is ‘ok’ to exception report, who flatten the hierarchies between junior and senior colleagues and fight for equality in the workplace. We must approach the unknown with a plan. Grass roots activists, shop floor junior doctors and national BMA leadership must roll their sleeves up. We need it all if we are to get through this.

  1. Rimmer A. Junior contract will be imposed, Hunt says. BMJ Careers 6 Jul 2016http://careers.bmj.com/careers/advice/Junior_contract_will_be_imposed%2C_Hunt_says
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Employment rights for junior doctors

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Following on from an earlier piece examining the whistle blowing lacuna facing junior doctors, guest blogger Moosa Qureshi looks at the wider context of employment rights for junior doctors. Moosa is a specialty registrar in haematology, PhD candidate at Cambridge University and has a background in law and European languages. This article expresses his personal views, and has been adapted with his consent from a post to the Facebook Junior Doctor Contract Forum.

 *UPDATE* Since publication the BMA JDC have ongoing work to implement schedule 8, section 8 so that it is effective in practice. Details are lacking at present, but possible strategies would see HEE as co-signatories and/or particular contractual obligations within HEE’s Learning Agreements. The author argues that junior doctors will only enjoy full legislative protection as whistle blowers if their employee/worker relationship with HEE is explicitly recognised.

Introduction

Health Education England (HEE) is a workforce planning arms-length body, which can be argued to control, manage and direct the career progression of qualified doctors on training programmes that culminate in GP or consultant status (also known as ‘junior doctors’). It authorises national training numbers (NTNs) for these programmes, and can withdraw those same numbers, effectively terminating a junior doctor’s employment contract.

Recent allegations against HEE causing detriment to a junior doctor that disclosed information where patient safety was endangered sparked an interesting response; HEE argued that junior doctors have whistle blowing protection from employers, but that as it has no employment relationship with junior doctors, employment law does not apply to any of HEE’s own actions against junior doctors.

More worryingly, an Employment Tribunal has recently ruled that HEE can withdraw a junior doctor’s NTN, and hence terminate a junior doctor’s employment, without any legal supervision or oversight. This ruling has been upheld on first appeal.

If a not uncommon employment scenario is considered, the implications of this ruling for the basic employment rights of all junior doctors can be best appreciated.

HEE employment scenario

“You are a junior doctor. Your clinical supervisor takes a dislike to you and writes an unfair critical report on your performance to your Annual Review of Competence & Progression (ARCP) panel. HEE decides to accept this critical report because it relies on a clinical supervisor’s report to appraise the junior doctors they supervise. HEE dismisses your explanation, and states that you can only continue in the programme if you comply with certain conditions (these may include meetings with a mentor, psychological evaluation and support, additional training events on perceived areas of weakness etc.). This is all recorded in your online work portfolio. Beyond this, HEE can choose to directly remove you from your training programme through deletion of your NTN.”

Let us examine the key components of this scenario under employment law:

  • Firstly, this scenario does not involve whistle blowing, and therefore is not covered by the Public Interest Disclosure Act 1998 (PIDA);
  • Your clinical supervisor and your NHS Trust are your line manager and employer respectively, but they have not dismissed you from your post. Therefore you cannot plead unfair dismissal before an Employment Tribunal;
  • HEE forces ‘remedial’ measures on you, whereby you implicitly accept that you have failings as a doctor. The implication that you are a poor doctor will follow you throughout your training and career, as sequential clinical supervisors access your online work portfolio;
  • Where HEE remove you from your training programme (and hence indirectly from your post), you have no legal protection against HEE’s action as they are not your employer – you cannot appeal the decision at an Employment Tribunal.

The key messages from this scenario are as follows:

  1. HEE’s immunity from employment law is not only a whistle blowing issue – it is an issue of general legal employment protection for all junior doctors;
  2. This could happen to any doctor in training;
  3. It provides a clear mechanism whereby a person working for an NHS employer can cause detriment to a junior doctor by acting through a ‘training’ organisation (HEE), instead of through the formal employer.

Anecdotally, this is not simply a theoretical risk, although cases often do not come to public attention.

There have recently been several well-publicised cases providing evidence that healthcare organisations will treat doctors unfairly even where those doctors have acted in the interests of safeguarding patients. Lack of accountability will only exacerbate this tendency, therefore this apparent legal ‘loophole’ must be closed. Basic employment rights are arguably more important than financial remuneration, and the current junior doctor contract renegotiation between the British Medical Association’s (BMA) Junior Doctors’ Committee (JDC) and NHS Employers attempts to address this through contractual wording, though this cannot affect legislation.

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Brexit, whistle blowing protection, nurses, medical students, and junior doctors

Questions have arisen regarding the current whistle blowing protection afforded to student nurses and proposals to extend protection to medical students, contrasting with the lack of protection for junior doctors. These questions relate to fundamental concepts of English law as well as the particulars of the Employment Rights Act 1996 (ERA).

Firstly, parliamentary sovereignty is a cornerstone of the UK (unwritten) constitution and means effectively that Parliament has complete freedom to pass whatsoever law it deems fit. No legal power can hinder Parliament in doing so. By a constitutional contrivance, Parliament has voluntarily submitted its sovereignty before EU law, but ‘Brexit’ will soon rescind this contrivance and fully unbridle the absolute power of Parliament. The fact that the UK has no written constitution means that our Parliament is not fettered by any constitutional safeguards and, post-Brexit, will have more power than the United States Congress or any continental legislative body. English judges can only apply Parliament’s laws and cannot challenge them, notwithstanding extremely rare instances of ‘creative interpretation’ from eminent judges, such as the late Lord Denning MR.

Parliament passed the Employment Rights Act 1996 and Part IVA of this act allows ‘workers’ to make protected disclosures (i.e. whistle blow) to their employers:

  • Section 230(3) generically defines ‘workers’ as those who have an employment contract (‘employees’) but also those non-employees who have any contract – express or implied – to do work for another party to the employment contract;
  • Section 43k within Part IV extends the section 230(3) generic definition of ‘workers’ specifically for whistle blowing, including various other categories, such as agency workers;
  • Section 43k subsection 1(cb) specifically extends the meaning of ‘workers’ to include student nurses for the purposes of whistle blowing.

As Parliament says that student nurses are ‘workers’ for the purposes of whistle blowing, then they legally become workers. This is an example of Parliamentary sovereignty. Regardless of whether student nurses are in paid employment, a judge is bound to consider a student nurse as a ‘worker’ if Parliament passes an act which defines that nurse as a worker. Because Parliament has not defined medical students as workers for the purposes of whistle blowing, medical students are not legally workers. Judges do not have legal sovereignty (because, unlike Parliament, judges do not represent the ‘democratic will of the people’) and therefore cannot extend the meaning of ‘worker’ to include those who are not in any sort of paid employment e.g. to medical students.

Significantly, section 43k(4) gives the Secretary of State for Health power to simply order that medical students (or anybody else) can be added to the list of ‘workers’. This is how the Department for Health can plan to simply decide that medical students are workers, without needing any additional legislation from Parliament. Equally, Jeremy Hunt could order that junior doctors undergoing HEE-mediated training are workers, and thereby protect junior doctors from HEE if and when they whistle blow.

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Conduct of the BMA and specious remedy provided in the proposed new contract

However, there is another important aspect to the legal vulnerability of junior doctors: the current legal lacuna is not only a problem of definition of junior doctors as workers or employees, but it is also a problem of definition of their employers. Thus far the Employment Tribunal has ruled that HEE is not an employer or even an employment agency for junior doctors. This ruling is looking to be independently appealed by a junior doctor, as the BMA have allegedly refused to support legal action for the protection of junior doctors against HEE.

The contract agreement between the BMA JDC and NHS Employers purports to provide a contractual remedy for the problem of HEE causing detriment to junior doctors who whistle blow in Schedule 8 section 8:

“A doctor making such a qualifying disclosure, whether under PIDA or directly to Health Education England, shall also have the right not to be subject to any detriment by Health Education England for raising such concerns… “

This remedy raises important problems and questions for the BMA:

The first problem is that this represents a contract between a junior doctor and an employer (e.g. a hospital trust). A contract is only binding on the parties who sign that contract, a fundamental principle of English contract law known as ‘privity of contract’. So if a junior doctor goes to an Employment Tribunal (ET) and says, “my new contract says that HEE should not cause me detriment for whistle blowing”, then the response of the ET judge will be: “How can a contract between A (junior doctor) and B (employing trust)… be binding on C (HEE)?”

To draw an analogy, it would be like if Fred signed a contract with Mike so that Fred could take possession of John’s house. The house belongs to John. If Fred wanted to possess John’s house, Fred would have to enter a contract with John, and not Mike. For Fred to say “I contract with Mike to take John’s house” has no legal effect. The BMA should be aware that Schedule 8 section 8 of the new contract offers absolutely no legal protection to junior doctors.

Secondly, as explained in the employment scenario above, HEE currently has the power to dismiss a junior doctor from a training programme for any reason it sees fit – not only for whistle blowing. This means that HEE can cause detriment to any junior doctor, and not only to those few junior doctors who are involved in whistle blowing cases. Furthermore, HEE has complete immunity from employment law if it chooses to do so. Schedule 8 of the proposed new contract ignores this important issue, which extends the risks posed by HEE impunity from a few whistle blowers to all junior doctors.

In turn, these problems raise serious questions for all junior doctors to consider:

  • Firstly, during negotiations, if the BMA realised that this clause has no legal effect and offers no legal protection from HEE, then what motivation did they have for offering junior doctors a contractual ‘protection’ against HEE without legal effect?
  • Alternatively, if the BMA did not realise this clause had no legal effect and genuinely thought that a contract between junior doctors and NHS Employers can bind HEE without HEE signing said contract, then how are junior doctors to have confidence in the provisions of the contract when their representatives during negotiations did not understand fundamental principles of contract law?

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A credible and genuine remedy is required

From the above, it is clear that junior doctors can only be offered meaningful legal protection by:

  1. HEE acceding as a party to any proposed new contract and;
  2. HEE formally recognising an employment relationship with junior doctors.

This will make the ERA and PIDA applicable to HEE, and at the same time it will offer the general protection of employment law to junior doctors against an organisation which does, in most normally understood senses, demonstrate an employment relationship with junior doctors. HEE provides a significant proportion of a junior doctor’s salary, evaluates a doctor’s performance at work, allocates a particular hospital post to a doctor, and can withdraw a doctor’s NTN with the immediate effect of terminating his or her employment. HEE needs to stop pretending before the courts that it has only a peripheral and tangential relationship with the employment of junior doctors.

The recognition that HEE has an employment relationship with junior doctors will provide all the remedies of employment law (e.g. unfair dismissal, reinstatement, discrimination) rather than simply allowing a junior doctor to seek damages for breach of contract. For instance, an Employment Tribunal can force HEE to reinstate a doctor, whereas breach of contract would normally provide only financial reparations.

Regarding the practicality of achieving this legal protection for junior doctors, it is eminently feasible. Section 15 of Schedule 5 of the Care Act 2014 clearly states that HEE must cooperate with the Secretary of State for Health, and therefore it is very reasonable to require HEE to sign up to a contract that has been agreed with the Secretary of State i.e. the BMA should not have to enter a further process of negotiation with HEE, because HEE is already legally obliged to cooperate with the Secretary of State.

A worrying reason on why HEE object to being a party to the proposed new contract is if it wishes to preserve a mechanism whereby it controls doctor careers while escaping any accountability through employment law. This needs to be challenged powerfully by all stakeholders: the General Medical Council, the BMA, the medical profession, and all patients/patient groups who wish to be cared for by healthcare professionals who are free to blow the whistle when they see patients’ lives being endangered.

Whatever the outcome of the junior doctor contract referendum, the wider system must address this significant issue through contractual and extra-contractual means.

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.

Down The LTFT Pay Rabbit Hole…

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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)?

Indirect discrimination within the proposed junior doctor contract – an analysis

women-in-medicine

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.