What the contract says
Schedule 30 sets out who is eligible for funding purposes, and (separately) to participate in the LCEA scheme.
Those eligible to be included in the calculation of the minimum investment amount
Schedule 30 states:
For these purposes, eligible consultants are those who are substantively employed with at least one year’s service at consultant level and who do not hold a NCEA, or a distinction award.
Schedule 30 only applies to consultants who are employed under the 2003 Terms and Conditions – Consultants (England) 2003 (2003 TCS) and therefore agency locum consultants, those employed on contracts that pre-date the 2003 TCS or those on locally varied contracts should not be included in the calculation of the minimum investment amount.
The minimum amount invested in the LCEA fund is based on eligible full-time equivalent (FTE) consultants.
Those eligible to participate in the scheme and apply for an LCEA
Contractual eligibility to participate in the LCEA scheme to date has always been predicated on employment under the 2003 TCS: as employer-run LCEAs are a requirement, as set out in Schedule 30 of the 2003 TCS, all consultants employed under those terms (who meet the other eligibility criteria) are eligible to apply for LCEA awards.
Despite a nationally agreed extension of the eligibility criteria for the 2021-22 equal distribution round, a return to Schedule 30 post 1 April 2022 brings a reversion to more restrictive criteria in the contract, which are as follows:
Consultants who are fully registered medical or dental practitioners, who are included on the specialist register of the General Medical Council (GMC) or specialist list of the General Dental Council (GDC), who have been substantively employed as an NHS consultant and have been employed on the National 2003 Terms and Conditions of Service (2003 TCS) for at least one year.
These doctors have a legal contractual entitlement to participate in the scheme. The original intention of the one-year provision was to preclude new consultants so that they weren’t encouraged to put in an LCEA application when they were unlikely to have built up enough relevant/award-worthy evidence. It was never intended to exclude consultants who had moved within an awards year/ period. Therefore, the one-year service need not be continuous, or with the same employer.
Fixed-term locum work where individuals are engaged by the employer under the 2003 TCS will count towards the one-year service eligibility requirement but agency locum work will be excluded for the purposes of determining continuous service and eligibility.
Historically, LCEA payments have been pro-rated for those who are LTFT.
As the 2003 TCS are silent on the payment of LCEAs to LTFT consultants, there is scope for the employer to determine whether LCEA payments for LTFT consultants remain pro-rated or they receive full payments. However, there are several points to consider.
LTFT consultants will benefit from statutory protection under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 but that only requires that part-time workers do not suffer less favourable treatment than comparable full-time workers on a pro-rata basis. Employers are not obliged to provide LTFT consultants with full payments and there may be a risk in doing so in terms of discrimination claims from full-time workers. In addition, a full payment to an LTFT consultant, when they have not been included in the calculation of the fund as a separate full-time consultant (it being the case that FTE are used under the terms of Schedule 30), will dilute the pot of money available for distribution. We, therefore, suggest that a pro rata approach is taken to payment.
Schedule 30 does not explicitly mention the inclusion of fixed-term employees for the purposes of participating in the LCEAs. However, the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 places a requirement on the employer to ensure that fixed-term employees are not treated less favourably compared to their colleagues on permanent contracts (unless such a difference can be justified). In addition, where an individual is employed on the 2003 TCS, regardless of whether that is on a fixed term or a locum post, there is a contractual right to participate. Agency locum posts will not provide a contractual right to participate in the LCEAs although such experience may be relevant once a consultant is eligible under the 2003 TCS.
Individuals who retire and return on a fixed-term basis where they are employed under the 2003 TCS shall also have a contractual right to participate where they satisfy all other eligibility requirements.
Our advice is to include consultants on fixed-term contracts in your scheme for calculation purposes (where they are full time and using the FTE principle for those who are LTFT) and to be able to receive an award (whether LTFT or full time).
This should be based on the principle that no consultant is rewarded twice for the same work, so employers should stipulate that these consultants can only participate in the scheme on the basis of their contractual arrangement with each employer and we recommend that, where relevant, payments are made in accordance with the advice above regarding LTFT consultants.
Consultants shall be included in each organisation’s minimum investment calculation at the pro-rated amount in which they are contracted to work at that organisation.
Competitive award rounds
The Consultant is included in the investment calculation of the fund at each organisation at the same rate as their pro-rated contract.
They will then receive a pro-rated portion of the LCEA they are awarded at each organisation.
Any extension to include groups of consultants (other than those stipulated as eligible above) in the scheme or to make a full payment to those who work LTFT requires either a ‘dilution’ of the pot, or additional funding provided locally.
We were unable to secure sign off for a national approach from all parties for either position. Increasing the numbers who can participate in the scheme or making full payments where the fund is only calculated on the basis of FTE consultants, where additional funds will not be provided locally will amount to a breach of schedule 30 for consultants employed on 2003 TCS and will require variation to schedule 30 locally through individual or collective consultation.
Where trusts supplement the pot at a local level when they extend eligibility so as to ensure that the number of consultants who are deemed to be eligible to participate in the scheme is used to calculate the fund, there will not be a breach of schedule 30 and this variation to local LCEA schemes can be made through consultation with the JLNC.
Consultants excluded from eligibility
Listed below are those consultants who are excluded from the eligibility criteria noted above.
Employers may use their discretion with agreement from their joint local negotiating committee (JLNC) to extend eligibility beyond the criteria, with the understanding that this would dilute the pot for those already eligible. Alternatively, employers could choose to top up the investment to prevent dilution.
- Consultants on contracts other than the 2003 TCS.
- Consultants who have been employed on the 2003 TCS for less than a year.
- Consultants on 2003 TCS who hold a National Clinical Excellence Award (NCEA) / National Clinical Impact Award (NCIA) / or a distinction award.
- Consultants on the 2003 TCS who have adverse outcomes following disciplinary actions by the employer, the General Medical Council (GMC) or the General Dental Council (GDC).
Adverse outcomes include disciplinary sanctions, all findings by the GMC or the GDC of impaired fitness to practice due to misconduct, deficient professional performance or criminal conviction or caution.
- Agency locum doctors.
However, if subsequently appointed to a substantive consultant post, it would be acceptable for their application to draw on evidence from their time as a locum consultant.
- Consultants who work exclusively in a general management position (such as chief executive or general manager) without a specific clinical role.
The purpose of the awards should be to recognise clinical excellence, and therefore practising clinicians, rather than those solely acting as managers.
- Consultant clinical academics (CCAs) on honorary contracts.
For CCAs Schedule 30 means that:
CCAs employed directly by the trust under 2003 TCS are contractually entitled to participate in the LCEA scheme.
Those CCAs who are substantively employed full time by the trust will be included in their FTE numbers and entitled to be included in the LCEA fund calculation.
CCAs who are not substantively employed by NHS organisations, but instead hold honorary contracts with them and are substantively employed by another organisation, are not recognised as eligible for the purposes of the calculation of the LCEA fund, nor are they contractually entitled to participate in LCEAs.
However, the expectation of the parties is that all CCAs will continue to be considered eligible to apply for LCEAs where agreed with the substantive employer. Where a CCA is accepted as eligible to receive an award, additional funds will need to be provided by the substantive employer to ensure that funding is not diluted for those with a contractual right to be considered eligible.
Additional minimum entry criteria and varying contractual terms
As well as the contractual eligibility criteria, trusts may opt to set additional ‘minimum entry criteria’ for consultants to participate in the awards scheme. This may be particularly pertinent for an equal distribution approach, where trusts can use the awards money to drive improvements in areas such as job planning and mandatory training requirements.
Care must be taken to ensure that the criteria are applied fairly and are achievable by all consultants (that is, that it does not disadvantage certain groups of consultants more than others) and such criteria should be introduced through consultation with the JLNC. There is a contractual obligation on employers to apply the provisions of Schedule 30, but locally, the terms can be varied through individual or collective consultation. The implications of any such changes would need to be carefully considered and agreed in line with the employer’s own collective bargaining agreement frameworks.