22 / 10 / 2014 4.17pm
Following the British Medical Association's (BMA) decision to walk away from the contract negotiations for consultants and junior doctors, NHS Employers has created a set of Q&As to answer questions that you may have about the areas of disagreement and what the next steps might be.
Our news page on the BMA's decision also lists the offers that NHS Employers had tabled in the negotiations, for both consultants and junior doctors.
Consultants' contract Q&As
Junior doctors' contract Q&As
The current contract for consultants was introduced in England in 2003, and a year later in Northern Ireland. It applies to NHS medical and dental consultants and for clinical academics employed in the higher education sector and with honorary NHS consultant contracts.
1. What were the main areas of disagreement for the consultants’ contract?
There were four main areas:
i. Schedule 3 Paragraph 6 (S3P6) of the consultant contract
This allows consultants to decline non-emergency work outside of core hours. Employers believe that S3P6 is a barrier to the expansion of seven-day services and so want it removed. The BMA agreed to its removal if agreement was reached on effective safeguards.
ii. Effective safeguards
NHS Employers had agreed to submit a final offer on safeguards for consideration by the BMA following the last negotiation meeting, which took place on 16 October. We stated that we intended to provide meaningful safeguards in contract and in guidance. Specifically, at the point of the talks being ended by the BMA, we had offered a package of safeguards to ensure consultants are provided appropriate protections where service changes are necessary to deliver seven-day services.
The safeguards offered included a clear contractual prioritisation for patients according to clinical need, limits on working hours, protections from excessive working out of hours and meaningful engagement prior to any service changes, amongst others.
iii. Automatic pay progression
In light of the Government’s position, NHS Employers has accepted the need to move away from automatic pay progression and payments based on time served, and explore new pay models. The preferred model in development seeks to link progression to higher levels of responsibility and competence, with progression being contingent on performance rather than time served. Although we have sought to agree a lower starting salary for the grade this was to be accompanied by accelerated progression to a higher pay point. To help us understand what the impact of this change would be for individuals, we described illustrative examples accompanied by a robust transitional phase involving early implementers trialling the system for a year, followed by a joint review to ensure the new arrangements were working as intended. Extensive protections for individuals were also offered during this implementation phase in the context of a negotiated agreement.
iv. Clinical Excellence Award schemes (CEAs)
CEAs were part of the Heads of Terms and of the DDRB’s report on consultant reward and pay (December 2012), which recommended an overhaul of the current schemes. Extensive discussions took place about using existing local CEA money, which is currently not a contractual entitlement, and instead making it available as contractual performance payments for distribution at a local level on the basis of personal, team and organisational performance.
2. When were the negotiations meant to conclude?
The Government had initially set down the deadline of October 2014 for a full detailed agreement. This was changed, by agreement, to achieving Heads of Agreement by the end of October 2014, with a view to beginning implementation in April 2015. Joint reports were submitted to ministers in July 2014, in which all negotiators said they believed that reaching agreement by this date was achievable.
3. Will the negotiations restart?
4. What happens if the negotiations don’t restart?
The Government wanted Heads of Agreement by the end of October 2014. The BMA made it clear that they wanted significant further concessions if a Heads of Agreement was to be reached. Those concessions went beyond employers’ ‘red lines’, which were clearly outlined by employers at the start of negotiations and drew an agreed line beyond which negotiations could not continue. If a Heads of Agreement is to be reached by the end of October, the red lines of all parties must be accepted.
There are a number of things that would need to be considered:
- Closure of existing contract - closing the consultants’ contract to new entrants and those taking up new posts would need to be considered. This would eventually lead to a need to move remaining contract holders to the new arrangements by some mechanism, over a reasonable period of time.
- Local negotiations on changes to the contract - extensive local negotiations would be possible but unlikely. Employers prefer a national framework, which they adopt and adapt for local use.
- Review of consultant pay structures - there is concern from the BMA that the Government might approach the DDRB to undertake a review and make recommendations on the current pay structure, which might then be imposed. We believe that the Government is more likely to ask DDRB to consider contract changes to give effect to seven-day services and a new contract for juniors, and to report to any incoming government.
- Changes to the CEA scheme - changes to the scheme, including complete removal, are now a risk following the ending of the talks. However, employers have in negotiations offered to make local CEA money contractual in a new performance-related pay system.
5. What are the implications for a future national contract?
Employers would prefer a national agreement on a national contract, but within a reasonable timeframe and not at any cost. Employers’ next favoured option would be a national framework to adopt and adapt locally. Employers are unlikely to favour extensive local bargaining.
Employers continue to be clear that contract reform is necessary.
The current arrangements are not optimum for patients as can be seen from NHS England’s work on seven-day services demonstrating that patient mortality is poorer for those admitted at weekends.
Junior doctors' contract
1. What were the main areas of disagreement for the junior doctors’ contract?
There were three main agenda items in the junior doctors’ contract negotiations, which caused disagreement.
i. Pay progression
The Government has been clear that automatic incremental pay progression is being phased out in the public sector. Currently, staff receive increments whether or not they are working, which means that staff who take time out tend to get disproportionately higher pay for the periods they are at work. NHS Employers had proposed a revision of the whole pay system, including higher rates of basic pay and pay progression linked to accepting a post at a higher level, to acknowledge the added value that junior doctors bring as they accumulate new skills through training.
ii. Pay distribution across the working week
NHS Employers was considering how best to distribute pay across the working week. We have been clear since the scoping study that we want to increase basic pay and reduce variable pay. To achieve this we proposed an increase to ‘plain time’ hours and were in discussion about how that might work and what rates might be appropriate for night shifts. The scenario mentioned by the BMA, plain time of 7am-10pm Monday to Sunday, was the first scenario we suggested but this was not an employer demand - it was one of multiple scenarios being considered. At the time the BMA withdrew from the talks, NHS Employers was modelling 14 such scenarios for discussion, including nine put forward by the BMA.
The idea behind the extension of plain time in both sets of negotiations (juniors and consultants) was to shift resources into the most intense periods such as nights, which are often worked in emergency departments, and away from evenings and weekend day times. Not doing this risks continuing to under-reward the most intensive work patterns and disproportionately incentivise low intensity.
iii. Pay for unplanned hours
NHS Employers agreed that prospectively planned work should be paid for, but we do not believe that doctors should be able to submit retrospective pay claims for unscheduled hours, as this does not form part of the contract for any other NHS staff. We proposed that exception reports should be used to flag overruns, which might lead to changes in the work schedule and corresponding changes in pay, and that compensatory rest would sometimes be required. We offered extensive safeguards to prevent excessive hours, including reduced maximum hours per week from 91 to 72, which is less than the 78 hours proposed by the BMA.
2. What happens next?
The contract terms are primarily a matter for employers who want sustainable and adaptable contracts. That is why the Government mandated NHS Employers to conduct these negotiations. Other staff groups have agreed sensible and justifiable changes with employers within tight financial constraints.
If you have any further questions, please email email@example.com