The judgement stressed the importance for employers in the NHS to take all reasonable steps to ensure that the effects of nationally negotiated collective agreements are incorporated into individual contracts.
NHS Employers produced a note agreed with the British Medical Association which outlines the action NHS employers should take in order to ensure that the framework, as well as other nationally determined changes to terms and conditions are successfully incorporated into individual contracts.
Implementing the Doctors and Dentists Disciplinary Framework - Maintaining High Professional Standards in the Modern NHS
A joint statement from NHS Employers and the British Medical Association
Background
The disciplinary framework for doctors and dentists, Maintaining High Professional Standards in the Modern NHS, was agreed by the Department of Health, the British Medical Association and the British Dental Association in February 2005 and published together with a Secretary of State Direction later that month (Directions on Disciplinary Procedures 2005).
The new procedure replaced the disciplinary procedures contained in circular HC(90)9, as well as the Special Professional Panels (“the three wise men") provided for in HC(82)13 and abolished the right of appeal to the Secretary of State held by certain practitioners under Paragraph 190 of the Terms and Conditions of Service. NHS Trusts were required to incorporate the framework into their local procedures by June 2005.
It was envisaged that employers would discuss and agree with the local negotiating committee how to best integrate the collectively agreed national framework into existing local procedures.
Incorporating collective agreements into individual contracts of employment
The High Court judgment highlighted the need for NHS employers to take all reasonable steps to ensure that the effects of nationally negotiated collective agreements are incorporated into individual contracts of employment.
The Appellant was a NHS Consultant. While the judgement focused primarily on the question of frustration of contract, the judge also commented on the extent to which Maintaining High Professional Standards in the Modern NHS had been incorporated into the Appellant’s contract of employment. In this case, the employer had brought the new framework before the local negotiating committee & the medical advisory committee, gained approval from the trust board and had also run a series of training events. However, the judge was not satisfied that the Appellant’s contract was varied to incorporate the new procedure. NHS organisations may therefore wish to review the steps which they took to incorporate the framework into their local procedures.
As a result of this judgement NHS Employers issued a revised model consultant contract, under cover of Pay Circular (M&D) 2/2006.
Suggested action
In the case of Maintaining High Professional Standards, employers should:
- write to individual medical and dental practitioners in order to notify them of the revisions to the procedure under which they would be disciplined (i.e. the employer’ disciplinary procedure as amended to incorporate the Maintaining High Professional Standards Framework, following discussion and agreement with local staff representatives);
- place a copy of the notification on each individual’s HR record; and,
- issue this version of the procedure to all new medical and dental employees, including those on honorary contracts.
