The 2016 contract came into effect on 3 August 2016. The 2016 contract will start to be introduced in England for GP trainees and trainees in hospital posts approved for postgraduate medical/dental education in line with a phased implementation timetable from October 2016.
This web page will feature the most frequently asked questions about the new working hours and patterns outlined in the 2016 contract and will be updated regularly.
Q1. How will the 2016 contract change the hours a doctor can work?
The 2016 contract is safer and fairer for doctors and dentists in training and for patients. In addition to the protections offered by the working time regulations (WTR), the proposals provide the following safeguards on working hours and patterns which will be reflected in work schedules:
- Maximum average 48 hour working week (reduced from 56) with doctors who opt out of the WTR capped at maximum average of 56 working hours per week.
- Maximum 72 hours’ work in any seven day period (reduced from 91).
- Maximum shift length of 13 hours (reduced from 14 hours).
- Maximum of five consecutive long (>10 hours) shifts (reduced from seven) with minimum 48 hours rest after a run of five consecutive long shifts (up from 11 hours rest).
- Maximum of four consecutive night shifts (reduced from seven) with minimum 46 hours rest after a run of either three or four consecutive night shifts (up from 11 hours rest).
- Maximum of four consecutive long, late evening shifts (>10 hours finishing after 11pm) with minimum 48 hours rest after four consecutive long, late evening shifts (up from 11 hours rest).
- No doctor should be rostered to work more frequently than one weekend in two (a slightly different definition of weekends applies to F2 doctors for one rotation only).
- Maximum eight consecutive shifts with 48 hours’ rest after eight consecutive shifts (reduced from 12 consecutive shifts), apart from low-intensity non-resident on-call rotas, for which a 12-day maximum applies.
- No more than three rostered on-calls in seven days except by agreement, with guaranteed rest arrangements where overnight rest is disturbed.
- Maximum 24-hour period for on call which cannot be worked consecutively except at weekends or by agreement that it is safe to do so.
- Work rostered following on-call cannot exceed 10 hours, or 5 hours if rest provisions are expected to be breached.
Q2. Under what circumstances should overtime be paid?
Exceptionally, because of unforeseen circumstances, a trainee may feel a professional duty to work beyond the hours described in their work schedule. Such additional hours normally would be approved by the trainee’s line manager. In such exceptional circumstances, employers will appropriately compensate the individual trainee for such hours, either by payment, time off in lieu, or a combination of the two, if the work:
a. has been undertaken for the needs of the service; and
b. is authorised by an appropriate person (typically, this authorisation would be before or during the period of extended working).
Such work should normally be approved prospectively, but where this is not possible, the doctor should submit an exception report within seven days. Where such additional hours are paid, this should be paid at the doctor’s own nodal point and include any enhancements for unsocial hours, except at the weekend, where this will be the locum rate. Penalty rates will apply where such additional hours are worked in breach of contractual terms or working time regulations on hours or rest. Details are set out in Schedule 2 paras 63-69 of the TCS.
Q3. Will the 2016 contract allow for time to be taken out of programme (OOP) activity?
The educational decision to approve time of out a training programme to pursue other activities such as research, Masters qualifications, fellowships, voluntary work or other experience is made according to the provisions clearly set out in the Gold Guide. The 2016 contract for doctors in training allows for such OOP activity to occur.
The key part of arranging OOP activity is to have that activity prospectively planned and approved so that employers can accommodate it as part of their workforce and rota planning. There is no difference between the 2002 New Deal terms and the 2016 contract in this regard.
Q4. How will doctors’ hours be protected if Article 50 is invoked and we leave the EU, or the current UK working time regulations no longer apply?
The protections built into the 2016 contract to limit hours have been done so to promote safer working. In addition to the role of the guardian of safe working hours and the penalties that the guardian can apply, the restrictions are contractual and therefore normal legal routes could be followed should an employer knowingly break their obligations under that contract, once it has been implemented. The provisions of the UK working time regulations are embedded into the TCS, so even if they were to be repealed, the contractual provisions would continue to apply.
Q5. Will doctors still be able to swap shifts with colleagues for their own personal reasons?
The 2016 contract does not prevent shift swaps, but doctors must not breach the hours requirements set out in the contract. These rules have been designed to ensure safe working and were agreed with BMA leaders through negotiation. Doctors cannot swap shifts in such a way as to cause a breach of the safety provisions.
Should doctors decide between themselves to swap shifts, employers will not need to pay any additional pay enhancements or additional hours for the shift that a doctor chooses to work (if it differs in length and timing from their rostered shift) and doctors will not be able to raise an exception report on the basis that they elected to work a different shift to the one for which they were rostered.
Q6. Will there still be a requirement to maintain a residence close to place of work for the purposes of on-call?
The proposals do not change current operational on-call arrangements, which are for local determination.
Q7. What are the 2016 contract arrangements for annual leave and bank holidays?
Annual leave under the new proposal will be stated in days, rather than weeks. In addition, statutory days will be incorporated in to the annual leave allowance. This means that leave allowance on first appointment will be 27 days, increasing to 32 days after five years’ service. Annual leave for LTFT trainees will be pro-rata. Leave arrangements can be calculated in hours for non-standard working patterns. Existing arrangements for the definition of a ‘day’, giving notice for annual leave, time off in lieu for bank holiday working and payment for untaken leave remain unchanged.
Q8. Could we have mixed economy rotas? How do we deal with these? NEW added 10 August
You may have rotas staffed by doctors employed on the 2016 terms and conditions of service (TCS) and doctors on the 2002 TCS. This may only be for a short time during the phased implementation period, or could be for a longer period if you have doctors on long term contracts of employment on 2002 terms (for example in lead employer situations or in employers who employ trust doctors on long-term contracts based on the 2002 TCS). In such cases, all the rotas affected must comply with both the 2002 contract rota rules and the new 2016 rules.
To ensure compliance with both sets of rules you should ensure the rota complies with 2016 rules first. If the rota reflects a full shift pattern, it should also then comply with the 2002 rules. For on-call working patterns there is a possibility it will not comply with 2002 rules on hours of work following a period of on-call. The 2016 rules allow the day after an on-call period to be up to 10 hours, whereas 2002 rules only allow up to 8 hours.
If the 2016 on-call rota does not meet the 2002 rules, ensure that there is no more than 8 hours of work after an on-call period. This should ensure compliance with both sets of rules. The software providers Allocate and Skills for Health should be able to help with this if necessary. Once the rota complies with both sets of rules, doctors can be paid according to their individual TCS.
Doctors on the 2002 TCS still have a contractual entitlement to monitoring. When monitoring a mixed economy rota, take the same approach as you would when monitoring a rota which includes trust grade doctors (i.e. only include the doctors in training on the 2002 TCS). This may mean extending the monitoring period to get a valid return.
Q9. Do we need to monitor between August and December this year for the four months new F1s are on the 2002 contract before transitioning? Or for other cohorts who start on the 2002 contract before transitioning to the 2016 contract? NEW added 10 August
The 2002 terms and conditions of service stipulate monitoring must be done twice a year (or once by agreement) so this should be taken in to account. It might be a good idea to monitor to make sure the rota works as expected, especially if it has been changed to meet the 2016 rota rules. Monitoring the rota might help to show junior doctors that the rota is working safely and that you take their safe working seriously.
If such monitoring results in a banding change, this will not have any effect on the cash floor amount for future transitional pay arrangements, because the banding taken in to account for that purpose is the banding of the rota on 31 October 2015. However, while the trainee is still employed on the 2002 terms and conditions, current practices still apply, so if a valid monitoring exercise shows a higher banding, the current process of increasing the banding for the remainder of the placement and any applicable banding protection or backdating will still apply.
Q10. What is the rota sign off process? NEW added 10 August
For doctors employed on the 2002 terms and conditions of service (TCS), your existing process will still apply. The 2002 TCS set out at paragraph 22 the process for rebanding a rota. Where the rota is not changing banding, the TCS are silent, however we advise following the same consultative process where possible, unless your local change management policy sets out a different process. Some regions will have agreed local processes, for example in the North West, where a junior doctor advisory team remains in place.
The 2016 TCS do not contain a process for changing rotas and there is no external sign off, so employers should use agreed local processes. We would always advise consulting with the doctors working on the rota to ensure that the new arrangements are robust and reflect what actually happens.
Doctors will be able to use the exception reporting system to flag issues with the rota, which may lead to a work schedule review. The guardian of safe working will be the ultimate backstop guarding against unsafe rotas, with the director of medical education (DME) providing assurance that rotas are educationally appropriate.
Q11. Can we still use non-resident on call rotas? NEW added 10 August
Yes – as now the majority of on-call working patterns will be non-resident. However, the rules around them have changed so be sure that your new working pattern complies with the 2016 TCS.