These frequently asked questions have been updated in agreement with the British Medical Association (BMA).
1.1 What is the scope of the 2016 contract?
The 2016 contract for doctors and dentists in training applies in England for trainees in hospital and community posts and public health posts approved for postgraduate medical/dental education. It replaces the current new deal arrangements, 2000 and the hospital medical and dental staff terms and conditions of service 2002, as they apply to trainees.
The new contractual arrangements also apply in England to general practice trainees during approved general medical practice placements that form part of postgraduate medical education and replace provisions currently contained in schedules to the directions to Health Education England (GP registrars).
1.2 How does the 2016 contract apply to dentists in training?
The 2016 contract applies to dentists in hospital based posts approved for core and specialty dental training. It does not apply to dentists undertaking foundation training in general dental practice (vocational training placements).
1.3 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.
1.4 Why do I have to offer to work additional hours to the NHS before I can take up locum work?
The 2016 contract sets a clear limit on weekly average hours of work in any setting at 56 hours (where a doctor has opted out of the working time regulations). Doctors have a responsibility to ensure that when working any additional hours outside their work schedule those hours are safe and in line with the contractual limits, which are binding on both the employer and the doctor.
Before undertaking additional locum work, doctors will need to show their fidelity to the NHS by offering to work locum hours through an NHS staff bank (or equivalent). This can be with any NHS staff bank, trust or NHS service provider. Where employers do not wish to take up the offer of additional locum hours, they will still need to be informed of any additional work that doctors are doing to ensure that they are working safely.
This provision is not intended to infringe on the time that doctors spend undertaking voluntary work, such as supporting sports teams, St John Ambulance or other charitable organisations, although employers must be informed where such work is being undertaken and such work needs to be considered by both the doctor and employer when determining whether a doctor is working within safe limits.
1.5 What is the process for offering additional locum hours to the NHS?
The policy intention is that where a junior doctor wishes to undertake locum work, they must offer their availability first to the NHS, via an NHS staff bank. The offer of work by the individual can be with any NHS trust, including the individual’s substantive or host employer, to fulfil this requirement. It is important to note however that the intention of this clause, in line with the description in Q4, is to require doctors to offer specified hours of locum work as defined by the junior doctor themselves. If a doctor has no intention of working extra hours above their contracted hours they cannot be compelled to work extra hours. The TCS 2016 state that the employer will agree with the LNC local processes for the implementation of this clause.
1.6 Does the fidelity to the NHS clause for locum work apply to doctors on the 2002 TCS?
No, it is a feature of the 2016 terms and conditions of service. The national locum rate is similarly a feature of the 2016 contract; however, it is suggested that employers use this locum rate for all of their junior doctors employed through bank arrangements to ensure consistency and to help to control locum spend.
1.7 How does funding for postgraduate education work with the new contract?
Funding for postgraduate education has changed over the last few years and trusts now receive a proportion of basic pay plus an education tariff for each trainee they employ. It will be for HEE to determine the level of funding it provides in light of the implementation of the 2016 contract, but we do not anticipate that there will be any significant change in the overall level of funding that trusts receive from HEE.
1.8 In the UK the clocks go forward one hour at 1am on the last Sunday in March, and back one hour at 2am on the last Sunday in October. When they go back in October, this can affect some shifts and on call periods – can this be exception reported?
If this has resulted in extra time worked then yes, the trainee(s) can exception report.
Additionally, if this has resulted in a breach of the safety and or rest limits it will need to be exception reported. Employing organisations need to ensure that local arrangements are in place to address any impact on working hours when the clocks change so that doctors can continue to work safely.
1.9 What pay arrangements should be used for locally employed doctors working on rotas with trainees? Can we put them onto the 2016 or the 2002 terms and conditions?
Locally employed doctors (for example, clinical fellows, trust doctors etc) cannot be put onto national contractual arrangements, either 2002 or 2016, but will be on local contracts. The 2016 TCS are specific to doctors in training, as they have a strong focus on education and training as well as service delivery. It is for employers to decide locally how to set the contractual terms and pay for doctors who are not employed as doctors in training in recognised training posts.
Employers will often replicate or "mirror" national terms, but we advise these should be tailored to meet the specific needs of and service requirements placed upon trust doctors.
However, we recommend that where a locally employed doctor is working in an equivalent role to trainee colleagues, that they should as far as possible be on equivalent local 2016 terms and pay. Trust grade doctors should be placed onto trust grade rather than training grade pay codes. There are nodal points for trust grades (MT01-05) set out in Annex A Section 1 of the pay circular which are equivalent to those in the 2016 contract.
1.10 Do the changes to the NHS Staff Handbook related to enhanced shared parental leave and child bereavement leave apply to doctors and dentists in training in England employed under the 2002 terms and conditions?
New terms and conditions for doctors and dentists in training were introduced in England in 2016, which have a direct link to the 'All Staff Sections' of the handbook. As such the revised section 15 and new section 23 of the NHS Staff Handbook. This came into effect on 1 April 2020 and will automatically apply to any staff employed under that 2016 contract.
1.11 When should a doctor take the annual leave they have accrued during their parental leave?
The doctor is entitled to take this leave with some flexibility; however, it is recommended that they take it after their parental leave, and if possible before they return to work. It can prove problematic to take additional accrued leave within a busy rota where there are limited days which do not attract enhanced pay and doctors should discuss a practical approach with their employer.
1.12 Does a doctor have to arrange swaps for shifts attracting enhancements or an allowance that they would have worked had it not been for their accrued annual leave?
If the doctor has given appropriate notice of their intent to take their accrued annual leave prior to returning to work, then they would not be required to cover or swap any shifts attracting an enhancement or allowance that they would have worked if they had returned to working on their rota earlier. This is because the doctor has not commenced working on the rota, and the taking of the accrued annual leave should have been factored into the rota.
If a doctor carries their accrued annual leave forward past the return to work and commence work under a rota, then a doctor would be expected to arrange swaps for any shifts which this accrued annual leave is requested for. This is because, once a doctor has returned to work, their accrued annual leave should be treated in the same manner as a doctor’s normal annual leave entitlement.
2.1 What does the 2016 contract mean for the pay for doctors in training?
Overall average earnings are expected to remain the same and individual pay will be more predictable and less variable between placements. Doctors will be paid more accurately for actual work done, with an increase in basic pensionable pay, additional pay for additional rostered hours, enhanced rates for unsocial hours, allowances for weekend working, on-call availability supplements for those required to be on-call, pay for anticipated work done whilst on-call and (where appropriate) flexible pay premia.
Some doctors may require transitional pay protection to maintain their level of pay under the 2002 new deal arrangements (protected at the level of banding for their current post as it was on 31 October 2015 excluding band 3). These are likely to include those on working patterns which were unfairly advantaged under the new deal banding system (e.g. those receiving a band 1B supplement for a 42.5 hour week in which all hours of work fall between 9am-5.30pm Monday to Friday), as well as those doctors whose current basic salary is significantly out of line with their current level of training, perhaps as a result of switching training programmes or training less than full time. These examples represent an inherent unfairness in the new deal contract that the 2016 contract seeks to rectify going forward.
2.2 How will monthly pay be calculated where hours vary from week to week in a rota?
The annual salary should be calculated according to the working pattern set out in the individual work schedule for each post, taking all the pay elements into account. Monthly pay will be a consistent amount each month and a month’s pay will reflect 1/12 of that annual amount.
Payments for exceptional additional and unscheduled hours of work, that have been approved to secure patient safety at the time the hours were worked, should be paid in the next available payroll.
2.3 How will pay be calculated for trainees who are less than full time (LTFT)?
Pay for trainees working less-than-full-time will be apportioned as follows:
- Basic pay (and the value of any applicable flexible pay premia) will be calculated pro rata to their agreed proportion of full time work.
- The on-call availability allowance will be calculated pro rata, based on the proportion of the full-time commitment to the rota that has been agreed in the doctor’s work schedule.
- Unsocial hours enhancements will be paid according to the working pattern detailed in the work schedule.
- Weekend allowance will be paid pro-rata based on the proportion of full time commitment to the weekend rota. For example, if the LTFT doctor contributes 60 per cent of the FTE weekend rota, they will receive 60 per cent of the cash sum outlined in Annex A for the FTE rota frequency according to their nodal point.
2.4 What are flexible pay premia and what is their value?
The 2016 contract offers new flexible pay premia for those training in GP practice placements and recognised hard-to-fill training programmes where there is the greatest need – currently this includes emergency medicine (ST4+) Histopathology, and psychiatry (all grades).
Premia will also be payable to doctors who return to clinical training after successfully undertaking a pre-agreed period of approved academic research, to those who train in oral and maxilla-facial surgery (OMFS) and, in some circumstances, to those who take time out of training to undertake other recognised activities that may be of benefit to the wider NHS.
The full criteria for flexible pay premia are set out in the terms and conditions in Schedule 2 paragraphs 21-44, with the values of those premia set out in Annex A.
In future years, evidence will be provided to the Doctors' and Dentists' Review Body (DDRB) (by Health Education England and other stakeholders) about hard-to-fill training programmes and other uses for flexible pay premia, to allow them to review the use of the payments and make recommendations on their application and value.
2.5 If a doctor has chosen to undertake academic research between training programmes (for example between finishing core training and applying for higher training) eligible for a flexible pay premium when they return to training?
The 2016 terms and conditions of service (TCS) state that to be eligible for an academic flexible pay premia (FPP), the doctor must return to the same training programme that they left to undertake the academic activity. However, there is no intention to withhold a flexible pay premia from those doctors who made the decision to undertake academic research between training programmes prior to the publication of the full 2016 TCS. Therefore, those doctors who have accepted an appointment to start an academic activity prior to 31 March 2016 without having secured a place on a GP or specialty training programme, who would otherwise qualify for a flexible pay premium on their return to training under the 2016 TCS, will be considered as being eligible for the appropriate flexible pay premium. To be eligible, they must enter a nationally recognised specialty training programme (excluding foundation programme) at the first available opportunity, in line with the national specialty training recruitment timetable, following the successful completion of that academic or leadership work. This provision will only be extended to those who have made the decision to take up such an academic programme prior to 31 March 2016. Employers should ask doctors to provide evidence of the date upon which they accepted this academic or leadership work in order to be awarded the FPP.
2.6 How should additional contracted hours be paid?
Basic pay will be for a 40-hour week, including paid breaks. Additional rostered hours, up to maximum of eight hours can be additionally contracted and reflected in the work schedule. Such additional hours will be paid at the basic hourly rate with appropriate enhancements payable for any hours which fall into the unsocial hour periods.
2.7 How can work done on-call be prospectively estimated and paid?
The arrangements set out in the TCS for paying for work undertaken while on-call, are similar to those which are currently used for specialty doctors and consultants.
Employers already have an understanding of the typical hours of work already done by doctors across the full range of specialties, as they currently need to estimate this for the purposes of scheduling rest breaks for doctors under the 2002 New Deal TCS. Employers can also use historical data from diary card monitoring to support their estimates. Where there is no data available, or where such data is not sufficiently robust, doctors currently in post and clinical and service managers can be consulted to validate this information for work schedules.
On-call frequency and prospectively estimated work done while on-call will be outlined in work schedules upon which a doctor’s pay is based. Should working patterns vary from the schedule, this should be addressed through the work schedule review process and pay adjusted accordingly.
2.8 What elements of pay will be pensionable under the 2016 contract?
Pension arrangements are set out in Schedule 2 paragraphs 67-69 of the TCS as follows. The following pay elements of the 2016 contract fall into the definitions contained in the NHS Pension Scheme Regulations 2015 (as amended):
- all hours worked up to 40 hours per week on average and paid at the basic pay rate
- London weighting
- pay protection amounts outlined in Schedule 2 para 49-62 of the 2016 terms and conditions (excludes transitional pay protection set out in Schedule 15).
2.9 Will there still be annual cost of living increases in pay rates?
The DDRB advises the government on rates of pay for doctors and dentists and are given a remit each year from the Secretary of State for Health. This process will continue following the introduction of the 2016 contract, although in the future, the DDRB may also be asked to review the value and application of flexible pay premia and other aspects of the new pay system.
2.10 The work schedule templates ask for details of the number of different types of shifts, this may be different depending on the slot on the rota, how is the individual paid?
The details on the numbers of different types of shifts can be lifted from the rota. Doctors will be paid according to the rota, not their individual pattern. This is detailed in various paragraphs in Schedule 2 for the different pay elements, and also at Schedule 4 paragraph 12 of the new terms and conditions of service.
2.11 How is the £20k flexible pay premia (FPP) calculated for emergency medicine trainees?
The emergency medicine FPP is payable to emergency medicine trainees from ST4 and above. The total amount (£21,867 as per the 2021 pay circular) is divided over the eligible years of training. This means that if you are due to receive your certificates of completion of training (CCT) following completion of your ST6 year, you will receive £7,289per annum for the three years (ST4, ST5, and ST6). Trainees will continue to be paid this annual amount until they exit this training programme, so if your CCT date is put back by a year, you should receive £7,289 for that additional year. Less than full time trainees will receive the FPP amount pro-rata.
Trainees who transition or join the programme part-way through may only receive part of the FPP. For example, those who transition into ST5 should receive £7,289per annum for each of the remaining two years at ST5 and ST6 only, instead of the full £21,867. Trainees who are pay protected under Section 2 will not receive the FPP and continue to be paid under the 2002 pay scales.
2.12 Is the FPP applicable to all trainees in histopathology, for example, forensic histopathology trainees?
Yes, the FPP will be applicable to those entering training at ST1 now who are on training programmes for histopathology, forensic histopathology, diagnostic neuropathology, and paediatric and perinatal pathology. These are the eligible training programmes for this FPP.
2.13 How is the FPP applied for those at ST1 and above?
This flexible pay premium is being applied as a recruitment premium. It applies to those entering the eligible training programmes at the point the FPP is introduced, such as for those entering at ST1 from August 2018. In line with paragraph 29 of Schedule 2 of the Terms and Conditions of Service for NHS Doctors and Dentists in Training (England) 2016, the premium will continue to apply for these trainees for the duration of their training programme at the amount set out as applying to that programme at the point in time that the doctor first entered that programme (and as uprated), regardless of any subsequent changes to the premium (or removal of it) for subsequent entrants to the training programme.
2.14 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.
3.1 What are the working hours and patterns 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 with doctors who opt out of the WTR capped at maximum average of 56 working hours per week.
- Maximum 72 hours’ work in any consecutive 168 hour period.
- Maximum shift length of 13 hours.
- Maximum of four consecutive long (>10 hours) shifts* with a minimum of 48 hours rest rostered immediately following the conclusion of the fourth such shift.
- Maximum of four consecutive night shifts with minimum 46 hours rest after a run of either three or four consecutive night shifts.
- All reasonable steps should be taken to avoid rostering doctors to work at the weekend at a frequency of greater than one in three weekends.
- Maximum seven consecutive shifts* (apart from low-intensity non-resident on-call rotas, for which a 12-day maximum applies), there must be a minimum 48hours’ rest rostered immediately following the conclusion of the seventh shift.
- 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.
3.2 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 73-82 of the TCS.
3.3 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.
3.4 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.
3.5 Can more than one in three weekends be worked if picked up as a locum shift?
Trainees that wish to work in excess of one in three 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 one in two weekend limit.
3.6 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.
3.7 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 into 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.
3.8 What is the rota sign off process?
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.
3.9 Is the maximum of seven shifts over seven consecutive days? (or seven shifts over eight consecutive days in the case of night shifts/on call which fall over two days?), and are non-resident on call duty counted towards the count of consecutive shift?
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.
3.10 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?
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.
4.1 What safeguards does the contract offer to ensure that doctors are working in line with their work schedule?
The system of exception reporting outlined in the 2016 contract will ensure that departures from planned working hours, working pattern or access to planned training opportunities are recorded. Work schedule reviews should take place where this happens consistently and can be requested by the employer or the doctor.
The role of the guardian of safe working hours is designed to reassure junior doctors and employers that rotas and working conditions are safe for doctors and patients. The guardian will oversee the work schedule review process and will seek to address concerns relating to hours worked and access to training opportunities. They will support safe care for patients through protection and prevention measures to stop doctors working excessive hours and will have the power to levy financial penalties where safe working hours are breached.
Fines will be levied when working hours breach one or more of the following provisions:
- The 48-hour average weekly working limit.
- Contractual limit on maximum of 72 hours worked within any consecutive 7-day period.
- Minimum 11-hour rest has been reduced to less than 8 hours.
- Where meal breaks are missed on more than 25 per cent of occasions.
- The minimum non-resident on-call (NROC) overnight continuous rest of five hours between 10pm and 7am.
- The maximum 13-hour shift length.
- The minimum 11 hours rest between resident shifts.
- The minimum 8 hours total rest per 24-hour NROC shift.
Where the guardian can validate such exception reports, penalties will be levied against the department where the doctor works; the fine will be set at four times the basic or enhanced rate of pay applicable at the time of the breach. The doctor will receive 1.5 times the applicable locum rate, the guardian will retain the remainder of the penalty amount.
The guardian will convene a junior doctors’ forum at regular intervals to provide advice on the role and to scrutinise the disbursement of penalty fines. The guardian will provide regular and timely reports on the safety of doctors' working hours, rota gaps and annually on improvement plans to resolve rota gaps to the trust board. This information will be incorporated into the trust’s quality account and made available to the local negotiating committee (LNC), Care Quality Commission (CQC), Health Education England (HEE), General Medical Council (GMC) and the General Dental Council (GDC). The doctors and dentists review body may also ask for annual reports on the outcome of work schedule reviews.
4.2 How will exception reporting work and how quickly will issues be resolved?
The process for reviewing work schedules based on exception reports is designed to be more agile and reactive than the old contract system of hours monitoring and banding appeals. Employers will need to have an electronic system in place to manage exception reports by October 2016 when the first doctors transition to the 2016 contract. Existing rota software providers are working to create such a system for their customers.
Doctors should report exceptions where day-to-day work varies from that set out in the work schedule either in hours of work (including rest breaks) or the agreed working pattern, including the educational opportunities made available. Reports should be submitted, and copied to the locally agreed actioner, as soon as possible, and in any case within 14 days (7 days if payment is requested and within 24 hours where there are immediate safety concerns).
Upon receipt of an exception report, the educational supervisor will discuss with the doctor what action is necessary to address the exception and to ensure that it remains an exception. Where exceptions become more regular or frequent, a work schedule review will usually be required.
The process is designed to address issues as they arise within a training programme, so that any subsequent changes put in place as a result of discussion or more formal review can benefit the doctor in post as well as doctors moving into that placement in the future.
Employers should agree local policies or processes for exception reporting that provide a local framework and process for the submission and review of exception reports.
4.3 What systems can we use for the exception reports for the guardian?
Skills for Health and Allocate have exception reporting systems. Employers who wish to create their own system are free to do so, and those who do not use either system will need to make their own arrangements.
4.4 Who will be the guardian of safe working for GP trainees for the period that they are in their general practice placement and not in a hospital?
Where lead employer arrangements exist, the lead employer will be responsible for ensuring that there is a guardian appointed for all trainees, including GP trainees. GP practices and the lead employer should work in partnership to ensure arrangements are in place which facilitate this arrangement. Where no such lead employer arrangements are in place, it will be for the employer (the GP surgery) to identify and appoint an appropriate person to act as the guardian, in line with the requirements of the 2016 contract. The terms and conditions of service (CS) sets out provisions for the appointment of guardians where an employing organisation has fewer than 20 trainees.
4.5 For doctors in lead employer arrangements, how are any potential fines managed while the doctor is in a general practice placement?
The nature of placements in GP practices mean that it is extremely unlikely that a guardian fine would ever be levied.
However, if for some reason a doctor working in a practice placement does breach the rules and a guardian fine needs to be levied, then the system will work in the same was as for hospital-based trainees. The employer will need to make a penalty payment to the doctor and to the guardian (or in the case of breaks, just to the guardian). In lead employer arrangements, the general practice will need to inform the lead employer where a fine has arisen, so that the lead employer can make any payments necessary to the doctor (as they pay the doctor) and transfer the relevant fine amount to their guardian responsible for trainees in general practices. The lead employer may then arrange to re-charge the general practice for this sum, as obviously better management of the situation could have meant the fine was avoided. This will depend on any agreements/memorandum of understanding (MOU) governing the lead employer arrangement between the lead trust and the practices.
4.6 Do fines for five-hour and eight-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.
The fine is applied to a breach of the core rest limit and concerns arrangements around safe working in the shift immediately following the NROC where the rest breach occurs (see provisions in schedule 3 para 31-33 of the terms and conditions of service). It is 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.
As a general principle a single breach incident cannot attract multiple fines for the same hours or time period. The fine can only be levied once.
4.7 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?
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 4week period. At the end of a placement, any untaken TOIL will be converted into pay.
Q 5.1 What are the pay protection arrangements and to which doctors should protection be applied?
The 2016 contract provides an initial period of pay protection for doctors who were in training programmes on 2 August 2016 who remained in those programmes or progressed directly to their next programme on or after 3 August 2016, and to F1 doctors who began their training programme on 3 August 2016.
There are two sections to the pay protection provisions.
Section one covers foundation doctors, core trainees and doctors in the early stages of runthrough training. Doctors covered by section one include:
- All doctors commencing F1 on 3 August 2016.
- All doctors remaining on F1 or remaining on F2 as at 3 August 2016.
- All doctors entering F2 directly from F1 or from other training programmes on 3 August 2016.
- All new entrants to core or run-through speciality training (CT1 / ST1) from F2 or from other training programmes on 3 August 2016.
- All doctors moving into CT2, ST2 or CT3 grades from the grade immediately below or from other training programmes on 3 August 2016.
- All doctors remaining in the CT1, ST1, CT2, ST2 or CT3 grades as at 3 August 2016.
- All doctors progressing directly from core training or from other training programmes to higher training at ST3 point (or for doctors entering higher training in psychiatry or emergency medicine at the ST4 point) on 3 August 2016.
Pay protection for section one trainees will be through calculation of a cash floor. Should earnings under the 2016 contract be lower than this cash floor amount, an additional payment will be made to make up the difference. The cash floor is calculated as:
- the value of incremental point on the day immediately prior to moving to the 2016 TCS, plus
- the value of the GP supplement or banding supplement payable on 31 October 2015 (subject to a maximum of 1A or if the doctor has opted out of WTR, 2A) for the post the doctor was in on the day immediately prior to moving to the 2016 TCS.
Section two covers doctors in higher specialty training and the later stages of run-through training. Doctors in section two include:
- Doctors already at ST3 or above (or ST4 or above for emergency medicine or psychiatry training programmes) on a run-through training programme on 2 August 2016.
- Doctors already in higher specialty training programmes on 2 August 2016.
- Specialist registrars (SpRs) on a pre-2007 training programme.
Doctors in section two will continue to be paid a basic salary based on the current 2002 New
Deal pay scales (MN37), annual increments and a banding payment. A banding questionnaire is included with the TCS as Annex B for the purposes of calculating the banding supplement payable.
Full eligibility for pay protection is set out in Schedule 15 of the TCS.
5.2 How long will pay protection apply?
The 2016 contract provides for transitional pay protection to apply for four years of continuous employment from the point at which a doctor moves to the new contract, or until they exit training, or 6 August 2025 whichever is the sooner.
If during the period of transition a doctor is absent from work on maternity leave, adoption leave, shared parental leave, or long-term sick leave (more than three consecutive months), this period can be extended by the length of that absence up to a maximum of two years, or until 6 August 2025, or until they exit training, whichever is the sooner.
Doctors training less than full time (LTFT) will have their period of transitional pay protection extended to reflect the full time equivalent entitlement. For example, a trainee working at 80 per cent FTE will receive pay protection for five years, or until 6 August 2025 or until they exit training, whichever is the sooner.
5.3 Will doctors currently absent due to maternity, shared parental, adoption or long term sick leave or an approved OOP be eligible for pay protection when they return to training?
Yes, provided that the doctor still holds a national training number (NTN) or were part way through their foundation or core training programme when their out of programme (OOP) was agreed or absence started, pay protection will apply.
For the purposes of Section one pay protection, the protected level of pay for doctors absent at the point of transition shall be:
1. the incremental pay point the doctor would have reached had they not been absent, plus two, the value of the banding supplement paid on 31 October 2015 for the rota the doctor would have been working on had they not been absent at the point of transition, subject to a maximum of 50 per cent (or 80 per cent for those opted out of the working time regulations).
5.4 What pay protection will apply for a doctor who switches training programme or returns to training from being a SAS doctor (or other nationally recognised grade)?
If during the period of transition, doctors in training choose to switch training programmes, without a break in training of more than three months, subject to qualification periods, they will benefit from transitional section one cash floor pay protection until the end of their transition period. See Schedule 15 paragraph 4 of the 2016 terms and conditions (TCS).
Additionally, and also subject to qualification periods outlined in the TCS, the 2016 contract permanently provides for pay protection at the level of basic pay, where doctors either re-enter training from another nationally recognised grade or switch from a specialty training programme directly into an agreed hard to fill training programme. Currently these are general practice, psychiatry and the higher stages of emergency medicine (ST4+). See Schedule 2 of the TCS.
5.5 How is pay protection calculated for a career grade who changes from part time to full-time, or vice versa, on entering a hard to fill training post?
Career grade (defined as being an NHS medical practitioner appointed on national terms and conditions of service other than those for doctors and dentists in training) pay protection should be pro-rated according to the working percentage of the doctor, calculated as a percentage of 40 hours and capped at the maximum level of basic salary payable in the career grade post.
Where a career grade changes from part time to full time on entry to training
Protection would be at the relevant full-time (or maximum part-time) basic salary for the career grade.
An example would be a doctor who has been working an average six PAs per week as a Salaried GP within the standard national arrangements, and receiving a salary of £60,000 per annum, who then moves into a full-time training post. The full time equivalent for a salaried GP is nine sessions per week so their pay protected basic salary would be £90,000 per annum.
Career grade pay protection may not exceed the maximum level of basic salary payable in the career grade post (for instance, a maximum of five sessions in the hospital practitioner grade). This is to ensure that protection applies only to a level of salary which could actually have been received if the doctor had remained in the career grade.
Where a career grade changes from full time to part time on entry to training
Pro-rating will also apply to a full-time career grade moving into a LTFT post. So for example, where a doctor moves into an LTFT training post at 60 per cent of full time, their protected pay will be based on 24 hours per week at career grade basic salary (subject to the maximum salary cap). This is to ensure fairness to those moving from career grade posts where full time is less than 40 hours.
So a doctor working 10 PAs per week as a specialty doctor who moves into a training post working 60 per cent of full time would be eligible for protection calculated at 24 hours work per week on the relevant specialty doctor basic salary.
Salaried GPs have a full-time equivalent (FTE) of 37.5 hours = 9 sessions. Their protection should also be calculated at 24 hours work per week on the relevant salaried GP basic salary.
Where a career grade changes FTE at a later point in training
The same calculations would apply if the doctor changed FTE later in their training.
5.6 What will happen for doctors with previous NHS service who re-enter training from a post that was not in a nationally recognised grade, for example. trust grade, clinical fellow etc? Will they have any of their pay protected on transition to the new contract?
We recognise that some doctors may have made the decision to apply to return to training from trust doctor posts, or other types of medical posts that are not nationally recognised, expecting their previous NHS service to be recognised in determining their future pay. These doctors are not afforded pay protection in Schedule 2 of the 2016 contract.
5.7 Will banding supplements be protected if hours and banding change within a rotation?
If hours change during a placement, the provisions of Schedule 2 paragraphs 60-62 will apply. If pay increases due to a work schedule review, pay will increase from the date the change is implemented (other than in exceptional circumstances). Where the work schedule review is required by your employer and, as a consequence pay will decrease, total pay will be protected until the doctor moves to their next placement. Where changes to the work schedule are requested by the doctor, any pay decreases will be reflected in total pay from the point the change is implemented.
5.8 For the purposes of pay protection in Schedule 2 paragraph 59, what are the agreed hard to fill training programmes?
The agreed hard-to-fill training programmes will be set out in the Medical and Dental Pay and Conditions Circular. Pay and Conditions Circular (M&D) identifies applicable training programmes as higher training in emergency medicine (ST4+), general practice, psychiatry and Histopathology
5.9 How will pay protection work practically?
Transitional pay protection has two elements – those in the early stages of their training will be entitled to a cash floor that their total salary cannot fall below; those in the higher stages of their training will continue to be paid on their 2002 contract pay scale with annual increments and banding for the duration of their transitional period.
We are asking the electronic staff record (ESR) organisation to create a field so that the cash floor amount, once calculated, can be input on to the doctor’s record on ESR. This will ensure that the cash floor value is transferred in the inter authority transfer (IAT) process when the doctor rotates. We are also asking ESR to create a field showing the doctor’s individual transition end date, so that it is clear to employers when pay protection should cease.
5.10 If a doctor on Section 2 pay protection is working in a GP practice, what banding should they get?
As these doctors continue to be paid as if they were on the previous pay system, they should receive the 45 per cent GP supplement while they are in their practice placement. There is no need to try and assess the banding supplement for these doctors during their placement. When the doctor rotates back into a hospital setting, they will then receive a banding based on their rota, just like all other doctors on Section 2 pay protection.
5.11 Where a doctor in training has a gap in training arising because the end date of one training programme does not match up to the start date of their first post/placement on the next training programme (either because the doctor is training less than full time and therefore out of sync with the programme, or because of a simple mismatch between the start and end date of training programmes, for example, between core and higher training), does the doctor continue to be eligible for pay protection?
Yes. Where a trainee exits one training programme, having secured entry to another training programme but is unable to take up a place on that second training programme due to a mismatch between the start and end dates of the two programmes, the break in training will not affect the doctor’s entitlement to transitional protection. In such circumstances, it is envisaged that the provisions of Schedule 15, paragraph 8 should apply. This provision does not apply where a doctor voluntarily leaves on programme prior to completion in order to take up a different programme. In those circumstances, the provisions of schedule 2, paragraphs 49-54 would apply, but a break in service, other than for reasons set out in paragraphs 49 would remove the entitlement to transitional protection.
5.12 Schedule 15, paragraph 37 indicates that a previous career grade salary (which was protected under the 2002 TCS) should be taken into account when calculating the doctor’s earnings in line with paragraph 25. How do we calculate any additional payments in the new post?
The agreed intention of Schedule 15 is that for doctors qualifying for section two, pay should continue in line with the 2002 TCS for the period in which such transitional protection applies, apart from the agreed modifications to banding.
This means, for doctors in receipt of career grade protection who transition to the new TCS, if pay protection applies in a particular post they would have their total pay in that post calculated as if they were doing that work under the terms of the previous career grade contract.
So if a doctor is receiving pay protection on a point of the specialty doctor scale, their total pay in the new post would be calculated as if they were doing that work under the specialty doctor arrangements. This might include additional programmed activities, premium time and/or on call availability allowance.
5.13 Schedule 15, paragraph 25 indicates that a previous career grade salary, which has been protected under paragraph 132 of the 2002 TCS, should be taken into account when calculating the cash floor. How does this work?
The intention of this paragraph is that where a doctor is in receipt of career grade pay protection, the cash floor should not fall below the protected career grade basic salary. The paragraph is clear that only basic pay can be considered, not any additional payments. Where a trainee due to transition is in receipt of career grade pay protection under paragraph 132a of the 2002 TCS, the employer should still undertake the standard cash floor calculation in paragraph 12, using the trainee basic salary which would apply if there was no career grade pay protection. If, however, the career grade basic salary is higher than this cash floor calculation, then the career grade basic salary should become the cash floor. For instance, if a specialty trainee has career grade pay protection from a specialty doctor post on £66,734, and their cash floor on training grade pay is calculated as £47,647 plus 1B banding = £66,034, then their cash floor should be set at the higher level of £66,734. However, if their protected career grade basic salary was £60,168, then the higher cash floor of £66,034 calculated on training grade pay would apply.
5.14 What pay protection do dental trainees receive? Is it section one or section two of the transitional arrangements?
The nomenclature used to describe dental training differs from that used for medical trainees.
This is set out in the pay and conditions circular, dentists on the Dental Core Training programme become higher trainees at the dental specialty year 1 (DST1) level. This should be recognised when determining the pay protection. So, for example, a dental trainee who was a ST2 in August 2016, would qualify for section two transitional arrangements, as per Schedule 15 of the TCS. Trainees already in the higher stages of training, who are transferring to the 2016 contract should be eligible for section two pay protection. This means that all dental trainees at DST1 and above at the dates set out in the TCS should be eligible for section two pay protection.
Any dentists in training not at DST1+ level (that is, still a DCT) on 2 August would be eligible for section one pay protection.
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