Pay and transitional arrangement questions
Safety limits and rest questions
Less Than Full Time (LTFT) and equalities
Code of practice
Software related questions
Q. The deal brings a £90 million investment for junior doctors over the next four years, on what basis will this be distributed between trusts, when and how will they be informed, and via what mechanism will the funding be transferred in 2019 and subsequent years?
A. The Department of Health and Social Care is working with Health Education England (HEE) on the best way to get the additional funding out to employers. Current funding for juniors is a mixture of the national service tariff and the salary support HEE provide to employers; the additional money is also likely to be a mixture of the two.
Q. Will the 2 per cent uplift be applied to the 2002 rates of pay for those on section 2 pay protection?
A. Yes, the pay uplift will apply to those on 2002 pay scales.
Q. Will the 'disco shift' allowance be in addition to the night duty premium currently paid?
A. No, there is currently a 37 per cent enhancement for night shifts, the eligibility for which is set out in schedule 2, paragraphs 14-16 of the terms and conditions of service. Disco shift allowance is an extension to this provision giving shifts ending after midnight and by 4am an enhancement of 37 per cent of the hourly basic rate for the entirety of the shift.
Q. Only some weekend frequency allowances have been updated. Will the other frequencies remain unchanged?
A. The current weekend frequency allowance percentages mean that some trainees are paid less per hour when working weekends. Specifically, this was shown to be the case for those who worked 1 in 2 weekends, 1 in 3 weekends, and 1 in 6 weekends. Therefore, the weekend frequency allowance rates for those working 1 in 2, 1 in 3, and 1 in 6 weekends will be uplifted from Dec 2019, to ensure these trainees are not paid less per hour than those working other weekend frequency patterns.
Q. Will 48 hours rest still be required after 7 consecutive shifts and 4 long shifts?
A. Yes, the 48 hours rest requirements will apply.
Q. Will the 46 hours rest period apply to additional night shifts picked up to cover absence etc?
A. The wording in the terms and conditions states this is applicable on rostered shifts and not worked, thus allowing Locums to be worked at the discretion of the doctor.
Q. Can more than 1 in 3 weekends be worked if picked up as a locum shift?
A. Trainees that wish to work in excess of 1 in 3 weekends by undertaking additional work, for example as a locum, are able to agree to do so but must not work at a frequency of greater than the maximum 1 in 2 weekend limit.
Q. Is the maximum of 7 shifts over 7 consecutive days? (or 7 shifts over 8 consecutive days in the case of night shifts/on call which fall over 2 days?), and are non-resident on call duty counted towards the count of consecutive shifts
A. The purposes of this rule are set out in the framework agreement. Where a shift, such as a night shift [or 24hr non-resident on call (NROC]), results in work occurring across two separate days as part of one shift, the work on each day is counted independently toward the maximum consecutive limit.
Q. What happens if trusts are not able to commit to reducing the weekend frequency to a maximum 1 in 3, in line with the implementation timeline? (UPDATED NOVEMBER 2019)
A. The timeline recommends that this change is reflected in rotas by no later than February 2020. However, we recognise that this provision is more problematic to introduce on some rotas than others. In some cases, the introduction of this provision would require recruitment of additional doctors or other healthcare professionals to fill the gaps left on the rotas, which may not be possible by February 2020. If an employer identifies that it is not feasible for a rota to function at a frequency of 1:3 weekends, or less, then prior to February 2020 the appropriate clinical director for the rota should set out the clinical justification for retaining the rota at a higher frequency, which the guardian of safe working hours must adjudge to be appropriate, This justification should be clearly set out and shared with the affected doctors.
Junior Doctor Forums (JDFs) have the ability to challenge the clinical justification provided by an employer, if they do not believe it to be valid, and/or suggest alternative solutions for consideration, The JDF can request that further evidence is provided for this exemption. However, JDFs do not have unilateral authority to veto an evidenced clinical justification provided by an employer and the guardian. JDFs cannot reject an appropriately justified exemption on the basis of the collective preference of doctors working on a rota not to work a clinically necessary higher weekend frequency.
Following this justification, rotas which exceed the 1:3 weekend frequency should be co-produced with the affected doctors and agreed via the junior doctor form. All rotas which exceed the 1:3 weekend frequency should be reviewed annually as a minimum, but earlier review dates may be deemed appropriate when agreeing the exemption, to assess progress in addressing the need for a weekend frequency of greater than 1 in 3 weekends and whether it is still necessary for the exemption to be retained.
As long as there are no safety implications for both patients and doctors, then it is possible that a rota could remain in place with a weekend frequency above 1:3 where necessary and clinically justified.
Q. Is the payment of £1000 to LTFT trainees permanent and does it apply to future trainees who go LTFT or only current trainees?
The LTFT allowance is effective from December 2019 and will apply to all LTFT trainees for as long as they continue to train less than full time. This allowance is not payable to those already in receipt of the transitional £1500 pay premium, until their pay protection has ceased.
Q. If the champion of flexible training is to be a contractual requirement who is responsible for providing these for the numerous small host organisations e.g. GP practices, local authorities etc?
A. We are working with the British Medical Association (BMA) to clarify expectations for lead employers and small host organisations.
Q. Health Education England hit the 12 weeks but trusts then receive a number of iterations which causes issues with meeting the Code of Practice timescales will anything be done to support trusts with this?
A. Should HEE notify the employer of changes to the information provided at any stage within 12 weeks prior to the start of the placement, the employer will take reasonable steps to provide the relevant information at 8 weeks and 6 weeks prior to commencement in post. Where this is not reasonably practicable, the employer will take reasonable steps to provide the doctor with the relevant information as soon as possible
Q . What are the implications of not meeting the 6-8-week notification provisions once made contractual?
A. The detail of these new provisions have not yet been agreed. As confirmed in the implementation timetable changes will be in place by June 2020, for doctors rotating from 5 August 2020. The parties are working on the basis that If the employer has received all the necessary information to allow them to meet the 8- and 6-week notification provisions and no changes have been requested, then the employer is contractually bound to meet them. Should the provisions not be met in these circumstances then the employer will be in breach of contract.
Q. The framework agreement refers to ‘employing organisation’, lead employers have almost no control over adherence to the Code of Practice or even any control over hosts actually providing work schedules at all. How can lead employers be contractually held accountable?
A. In response to the specific difficulties presented by lead employer arrangements it has been agreed that where the doctor is employed under this model, the lead employer organisation is required to take reasonable steps to ensure that upon any rotation the host organisation complies with relevant notification provisions in so far as applicable.
Q. How would the 8 and 6-weeks deadline work for LTFT trainees whose personalised work schedules are agreed between the trainee and the doctor, if this information is received after the 8 and 6-weeks would this still be a breach?
A. This would only be considered a breach if the employer had received the relevant information in enough time to meet the 8 and 6-week notification provisions but had failed to do so.
Q. Will the five days given to doctors to respond back to employers be included within the terms and conditions of service?
A. The terms and conditions state that in the event that the doctor fails to provide the information or comply with the relevant provisions set out in the Code of Practice and/or notifies the employer of information which materially impacts upon the post, the generic work schedule or the duty roster, the employer will not be in breach of contract if the notification provisions are not met. In such circumstances the employer will only be required to take reasonable steps to provide the information to meet the 8 and 6-weeks notification provisions.
Q. Will changes to the software be done in time for the work schedules to be sent out for October 2019 changeover?
A. Allocate: eRota will be updated on Thursday 5 September to accommodate the key changes required to support new work schedules.
Q. Will the changes to Allocate Software also be applied to HealthRoster as opposed to just eRota?
A. Allocate: Yes, we are currently scoping the work required to support the operationalisation of these changes. MedicOnDuty will be updated later this year/early 2020.
Q. Making copies of rotas is not a quick job - why is it not automated?
A. Allocate: Unfortunately, the timescales for implementation don’t enable us to develop a solution that would enable a quick copy of all rotas.
Q. When will live rostering systems reflect the new rules?
A. Allocate: We are currently scoping the work required to support the operationalisation of these changes. MedicOnDuty will be updated later this year/early 2020.
Q. The Allocate system does not allow us to close an exception report, even when the situation has been resolved, is there scope to build something in?
A. Allocate: The ability to close exception reports was released in May; either the Guardian or administrator can click into an open exception and use the ‘close’ button. Closed exceptions can be reopened at any time and can be found under the ‘all exceptions’ metric on the dashboard.
Q. Will the system highlight issues on rotas, or do we need to manually check every rota?
A. Allocate: We don’t recalculate pre-live, live or archived rotas in order to preserve the integrity of previously agreed contractual arrangements. In order to test against the revised rules, a copy will need to be made.
Q. In the implementation timetable it states that the safety limit ‘72 hrs in any consecutive 168 hr period’ is to be in place for October. Where we have already agreed and issued rotas/work schedules for October, is the expectation that these will need to be recalculated and reissued?
A. Subject to software updates, yes, the expectation is that these will be recalculated and reissued.
Q. The safety limits for ‘rest after nights’ and ‘max weekend frequency’ states ‘recommended for October 2019 and to be included for December 2019 rotations and all others by Feb 2020’. is the expectation that these will need to be recalculated and reissued for October?
A. No, these will not need to be re-issued if they have already been issued, the caveat allows rotas/work schedules that have already been issued for October to proceed. Employers may need to do a mid-placement review.
Q. Some October work schedules and offers have already been sent out as per the code of practice timeline, do these ones now need to be re-issued?
A. No, if these have already been sent then this would be at the trainees next scheduled rotation.
Q. When will the annual 2 per cent pay uplift be introduced? Will it be backdated, and if so what will happen to trainees who have rotated to new employers in August?
A. Yes, the annual pay uplift will be introduced in September 2019 and backdated to 1 April 2019 for the 2019/20 period. When the current or previous employer runs the retro process, the system will automatically generate the arrears for the doctors who have rotated. It will then be automatically paid to the doctor as a payment after leaving when the payroll has been processed by the current or previous trust. Employers should ensure trainees rotating out are made aware payment of arrears will be made by their previous trust, up to date of rotation, and confirm bank details will not be different to those held on ESR.
Q. Is there a delay to the champion of flexible training?
The inclusion of the champion of flexible training provisions in the 2016 TCS – originally intended for version 7 – has been delayed due to the need for further clarification on the appointment and implementation of this role, particularly within non-hospital settings, and in scenarios where the role could span multiple sites.
NHS Employers and the BMA will publish the provision within the TCS simultaneously to the publication of supplementary guidance regarding the role, in order to provide the necessary clarity, and ensure successful implementation of these roles.
As such, the champion of flexible training role will be made contractual in version 8 of the TCS, with supplementary guidance published alongside this. In the meantime, we encourage employers to consider the process outlined in the framework agreement, and prepare the necessary appointment panel ahead of time to allow for smooth implementation upon the publication of version 8.
Q. Are the GP home to work expenses only paid for days when the car is actually used for home visits or is it every day the car could potentially be used? What mileage rates should be applied?
A. The parties have committed to clarify what additional mileage expenses can be accessed by GP trainees who may be required to undertake home visits in their own vehicle (Schedule 11, paragraph 16 of version 6 of the updated 2016 terms and conditions) to enable employers to process claims. The parties will work to resolve this as soon as possible, within a future iteration of the updated terms and conditions. Any claims unresolved at the point of resolution will be processed immediately and payment will be backdated.
Q. If the national locum rates are removed from the terms and conditions and pay circular, what rate would be used to determine fines or exception reports as per schedule 2 paragraph 68 of the terms and conditions of service?
A. The reference to the national locum rates will be removed from the terms and conditions, however for the purposes of fines the NHS Improvement rates in 2018/3 circular will remain and will freeze with no automatic annual uplifts. These will be reviewed via the Juniors Negotiations Committee (Juniors).
Q. Who covers the cost for accommodation following night shift where a trainee is too tired to drive home? (UPDATED OCTOBER 2019)
A. The intention of this wasn’t for it to be a change of policy, the arrangements that employers had in place previously should continue to apply.
Q. Do fines for 5 hrs and 8-hour rest breaches occur in the case of one single breach or will they be dependent on averages? The introduction of these fines will in many cases mean that on call rotas can no longer be sustained for most specialties. Are the Royal Colleges aware of this?
A. The fine is applied to a breach of the core rest limit on the occasion which it happens, the provisions in schedule 3 para 31-33 concerns arrangements around safe working in the shift immediately following the NROC where the rest breach occurs – it’s a measure to ensure doctor and patient safety are not compromised. These breaches shouldn’t be happening on a regular basis and if they are, that’s an indicator that reviewal of the pattern is needed to look at the root causes and to put measures in place to avoid recurrent breaches.
Q. Will the trust have the authority to allocate time off in lieu (TOIL) in the event that agreement cannot be reached between doctor and trust within 4 weeks.
A. If TOIL has been agreed as the compensatory outcome of an exception report by both parties, it should be done so under the expectation that the TOIL can be reasonably taken. Where this does not occur, the TOIL should automatically be converted to pay after that 4-week period. At the end of a placement, any untaken TOIL will be converted into pay.
Q. Are there any guidelines of how much admin support the guardian should be allocated?
A. As outlined in the framework agreement this provision is not effective from December 2019. Both NHS Employers and the BMA have committed to produce guidance to support employers with the implementation of this provisions.
Q. Can you please explain the prospective cover for study leave in February 2020 and how this will impact the cover that the trainees have to provide?
A. This will depend on how this is determined locally and the processes for how study leave is managed and taken. Where trainees are required to provide internal cover for colleagues on the rota when they take study leave or if shifts attracting an enhanced rate of pay or an allowance are required to be swapped for study leave, prospective cover is in operation. This must be factored into the calculation of the average weekly hours of work and pay for that rota. Where employing organisations have alternative arrangements for covering study leave where internal cover or swaps are not required, prospective cover does not apply.