Q. 20 Can we direct non-striking consultants to undertake the work of those who are rostered to provide Christmas Day cover but refuse to do so?
Where a non-striking consultant is attending work, they can be asked to undertake different duties (including those of the striking consultant) provided such duties are reasonably incidental to those set out in the job plan of the consultant who attends work or fall within a reasonable expectation of adaptability. How willing a consultant is to move and cover the role of a striking consultant may depend on their expertise and skillset and what tasks the organisation is asking them to undertake. Where consultants attend on site and follow management instructions regarding any variation on the day of strikes, they should continue to receive their normal pay.
Any duties that consultants attending the workplace on a strike day are asked to undertake which are not reasonably incidental to their job plan, do not fall within a reasonable expectation of adaptability and/or are outside their rostered hours will be extra contractual duties, the pay rates for which should be agreed at a local level.”
Q.19 How are Additional Programmed Activities (APAs) affected by industrial action deductions? (added on 13 July)
ESR will automatically reduce payment for APAs where there are days of unpaid leave within the month and, therefore, even though a consultant works a full APA, because they have taken strike action, their pay for the APA will be reduced.
We anticipate that most organisations will want to avoid a challenge by ensuring that APAs, which are worked, are paid in full. As this is an automatic element of ESR and cannot be removed, manual calculations at a local level will be required for APAs that fall in a month during which consultants are on periods of unpaid leave for strike action.
The manual payroll calculation required to counteract a 1 APA deduction when deducting 1 day’s pay is:
1 APA = 1/10th of the annual salary (basic pay plus any discretionary/distinction and pre-2018 awards payments that may apply), divided by 12 to get the monthly sum, divided by the number of days in the particular month strike action took place.
A worked example of a consultant that has 1 APA and a salary of £88,364:
1/10th of £88,364 = £8,836.40
£8,836.40 ÷ 12 = £736.37
£736.37 ÷ 31 = £23.75
Therefore, in this example, the consultant would need a manual payment of £23.75 per APA per strike day.
