- In the event that a consultant is not satisfied with the outcome of a mediation procedure in job planning and pay progression disputes a formal appeal can be made.
- This guide gives details on how consultants can instigate the appeals process and how NHS organisations should treat formal appeals.
The appeal panel
This section gives details of the make-up of an appeal panel to resolve disagreements related to consultant job planning and pay progression.
In accordance with the procedures set out in the model protocol, the appeal panel has three members, reflecting a balance of interests. These are as follows:
The panel chair
The employer is responsible for nominating the chair of the panel. It is anticipated that this role would normally be undertaken by a senior person such as a non-executive director of the trust.
The second panel member - the "consultant nominee"
The consultant is responsible for nominating the second panel member. The local negotiating committee may elect to hold a list of suitable panel members from which the consultant may choose. Alternatively, the consultant can nominate an individual of their own choice.
The independent third panel member
The Strategic Health Authority (SHA) will provide the name of the third panel member from a list of individuals, jointly approve by the SHA and the British Medical Association (BMA) and the British Dental Association (BDA). The procedure for this is also outlined in the model protocol.
Clinical academic consultants
The appeals panel constitution for clinical academic staff is set out in Annex B to the Honorary Consultant Contract (England).
Guides for the panel and panel members
The Consultant Contract Implementation Team (CCIT) and the BMA have produced a joint guide for appeal panels and a set of guides for each role of a panel member, that highlight:
- grounds for appeal
- matters outside the scope of the appeals process
- advice on making a recommendation
- documents to be available to an appeals panel
- responsibilities of the respective members of an appeal panel.
Guide to the role of the chair of the panel
Access the guide. [add link when published]
Guide to the role of the consultant nominee
Access the guide. [add link when published]
Guide to the role of the third panel member
Access the guide. [add link when published]
Further supporting documents
Each guide should be read in conjunction with the following documents:
- Terms and conditions - consultants (England) 2003
- Model protocol for appeals
- CCIT and BMA Joint guide for appeal panels
Appeals standard document bundle
These are the documents each panel member requires at a consultant appeal panel.
In 2004, CCIT and the BMA agreed a bundle of documents that provide relevant authority, information and guidance on aspects of the 2003 consultant contract. It is recommended that all panel members be given access to the complete bundle of documents.
This does not preclude either party to the appeal submitting further evidence.
- Consultants framework agreement (PDF) (and annexes (PDF)) 2002.
- Heads of agreement 2003 (PDF).
- Terms and conditions of service consultants (England) 2003.
- Clinical academics - model honorary contract.
- Guidance notes for the employment of consultant clinical academics.
This information is based on guides produced by the former CCIT in association with the BMA, and the following detailed documents noted above.
The appeal process
This section sets out the process to follow when submitting and hearing an appeal and coming to a decision on a disagreement over a consultant's job plan and pay progression.
The process is outlined in full in Schedule 4 of the terms and conditions and expanded on by the model protocol as agreed by the BMA, BDA and NHS.
This is a summary of the key points:
An appeal shall be lodged in writing to the chief executive within two weeks of the date of the letter notifying the consultant of the outcome of the mediation process. The letter of appeal should set out the points in dispute and the reasons for the appeal, together with an indication of the desired outcome.
The chief executive will confirm in writing to the appellant consultant and medical director (or other nominated representative of the employing organisation) the membership of the appeal panel and hearing date - usually within four weeks of receipt of the appeal letter - and will invite the parties to submit their written statements of case.
The parties to the appeal will submit their written statements of case to the appeal panel and to the other party, to be received no later than one week before the appeal hearing.
The appeal panel will hear verbal submissions on the day of the hearing - firstly from management and then from the consultant. The consultant may present his or her own case in person, or be assisted by a work colleague or trade union or professional organisation representative, but not by a legal representative acting in a professional capacity. The appeals panel may hear additional expert advice on HR or matters specific to a specialty. The consultant or employer, as appropriate, shall be responsible for arranging the attendance of their expert witness on the day of the appeal hearing.
The appeal panel will make a recommendation on the matter in dispute in writing to the board of the employing organisation, normally within two weeks of the appeal having been heard. The recommendation will normally be accepted. The board will make the final decision at their first available opportunity and will inform the parties in writing of their decision. The recommendation of an appeal panel in any one particular case will not set a precedent unless the relevant parties locally agree otherwise.
No disputed element of the job plan will be implemented until confirmed by the outcome of the appeals process. Any decision that affects the salary or pay of the consultant will have effect from the date on which the consultant referred the matter to mediation or from the time he or she would otherwise have received a change in salary, if earlier.
For those members of panels employed in the NHS, SHAs will write to relevant chief executives requesting that reasonable time off be given for preparation and participation in appeals. The relevant employing organisation shall pay the reasonable travel and subsistence expenses of panel members.
The appeal procedure is expressly restricted to dealing with appeals arising out of a failure to agree a job plan or failure to achieve pay progression, as set out in the term and conditions of service (TCS). The procedure is not intended as a mechanism to raise issues that would more appropriately be addressed through other procedures, for example the employing organisation's local grievance procedure, or through collective bargaining via the local negotiating committee (LNC) or staff side.
The issues to be determined by an appeal panel must be set out in writing by the appellant, and must fall within the scope of the appeals process. The appeal panel may only make recommendations in respect of issues within the scope of their jurisdiction and should decline either to comment or to make recommendations in respect of other issues. For example, the following issues may be matters upon which an appeal is brought (this list is intended to be illustrative and not exhaustive).
- Lack of sufficient detail in the job plan itself.
- That the offer of programmed activities (PAs) in the job plan does not reflect adequately the agreed workload commitment.
- Allocation of on-call category.
- Balance between PAs. May include questions of typical averages and the number of PAs allocated to supporting professional activities, additional NHS responsibilities or external duties.
- Recognition of unpredictable on-call commitments.
- Disputes over timing and/or location of duties (including requirements to change external commitments).
- Recognition of travelling time.
- Whether or not fee paying work is included in the job plan; issues of minimal disruption and retention of fees.
- Objectives - appropriateness and reasonableness.
- Supporting resources.
- On-call rota frequency.
- Disagreement over the reason for denial of progression - that is, any of the issues set out in Schedule 15.1.
- Whether there have been exceptional circumstances that have not been taken into account when determining denial.
- Introduction by the employer of additional criteria not provided for in the TCSs, for example, financial constraints.
- Disagreements over whether the appropriate number of years of service have been fulfilled for progression (Schedule 15.7).
In deciding appeals brought on these grounds, the appeal panel is entitled to look at both the substantive issue(s) in dispute and at the local process that has culminated in the appeal. For example, in an appeal based on failure to agree a job plan, the appeal panel may wish to examine the extent to which the parties have engaged in a reasonable process and dialogue locally, to determine whether the employer has behaved reasonably in reaching its position in relation to the appellant consultant.
Matters outside the scope of the job planning and pay progression appeals procedure
Examples of issues we would not expect to be addressed within this appeals procedure include the following:
- Appeals for pay protection.
- Appeals about seniority and consultant level experience.
- Appeals based on a reinterpretation of the TCS as currently written, for example, an appeal on the basis that on-call rota frequency should count prospective cover, rather than simply the number of consultants on the rota
- Appeals based merely on achieving parity with other consultants, foe example, in another department or another employing organisation.
- Appeal panel members will receive the appellant's written statement of appeal in advance of the hearing. It may be helpful at that point for panel members to give some thought to the issues that the panel is being asked to consider, and to consider whether there are any issues within the appellant's case that should be set aside as inadmissible within this procedure.
Making a recommendation
After hearing from both parties to the appeal, the panel will need to decide on a recommendation to the board of the appellant consultant's employing organisation. A recommendation need not be made immediately on the day of the appeal, although if the appeal panel members consider they have enough information on which to proceed, they may wish to formulate a recommendation immediately.
In many cases the appeal panel will wish to seek clarification on technical issues or issues of interpretation, and will want to obtain specialist advice, for example human resources advice, before proceeding further. It may be possible to arrange for a human resources adviser to be on hand on the day of the hearing to advise the appeal panel. At the discretion of the appeal panel Chair, a human resources adviser may be present during the hearing to hear each party's case at first hand, although the adviser should not take any active part in the proceedings.
The model appeals protocol allows for an adjournment of the hearing in order that advice may be sought. It would be acceptable to adjourn the hearing after considering all the evidence but before deciding on a recommendation, and to notify the parties of the recommendation in writing at a later date, normally within two weeks of the appeal having been heard.
Register to be a third panel member
NHS Employers holds the contact list for those who are happy to provide support as a third panel member for consultant and SAS doctor job planning appeals.