Guidance

Management of TOIL related to exception reporting

This guidance supports employers to manage and process TOIL requests made as a compensation outcome for an exception report.

26 January 2026

Chapters

What is exception reporting and who it applies to

Exception reporting applies to all doctors and dentists in training (referred to collectively hereafter as ‘the doctor’) who are substantively employed under the Terms and Conditions of Service for NHS Doctors and Dentists in Training (England) 2016 (2016 TCS) and to those whom the provision has been extended locally. It is recognised that the 2016 TCS are widely mirrored in other employment contexts, and we encourage employers in England to make every effort to extend exception reporting where appropriate*.

The purpose of exception reporting is to ensure prompt resolution and / or remedial action to ensure safe working hours are maintained, secure patient safety, and safeguard the delivery of agreed educational opportunities. Exception reporting is also the mechanism used by doctors to ensure compensation for all work performed and uphold agreed educational opportunities.

This exception reporting guidance is intended to provide direction and advice on how to interpret and implement the changes to exception reporting being enacted via version 13 of the 2016 TCS. This guidance seeks to provide recommendations and best practice approaches to implementing and adhering to these changes.

The overriding principle of these changes is to trust doctors to conduct themselves professionally, and to remove previously existing barriers to exception reporting.

* For example: Academic trainees who hold a national training number/deanery number and are substantively employed by universities. For these doctors, it is encouraged that their exception reporting provision should be extended by clinical employers through a standardised contract. Armed forces trainees who hold a national training number/deanery number. Public health trainees. Locally employed doctors whose terms of employment substantively mirror the 2016 TCS. Locally employed doctors whose terms of employment do not substantively mirror the 2016 TCS, but to whom ER has already been extended at a local level by their employers.

TOIL and exception reporting

For the purpose of exception reporting, time off in lieu (TOIL) is a method of compensating a doctor for additional hours worked.

When the doctor raises an exception report regarding additional hours worked, they will specify their choice to receive either payment or TOIL as compensation for the additional time worked (Schedule 5 paragraph 11g). When considering their preference, the doctor should take into account their own well-being alongside their professional responsibility for ensuring that their total hours of work comply with contractual and regulatory limits. To further inform their decision over whether to choose TOIL or payment the doctor can also refer to the hours specified in their work schedule to consider whether they are close to breaching, or have breached, any of the contractual limits on hours or rest requirements.

As per Schedule 2 paragraph 74 of the 2016 TCS, the choice to receive either payment or TOIL must be the doctor’s, except for when mandated due to a breach of rest requirements.

Please note that some of these circumstances below may also give rise to requirements relating to immediate safety concerns (see Schedule 5, paragraphs 33-34), and/or compensatory rest for the purposes of the Working Time Regulations.

There may be situations where the TOIL process as set out below is insufficient to address immediate safety concerns, and if so, they should be addressed via existing processes.

Where additional hours of work have caused a breach of rest requirements, time off in lieu must be taken within 24 hours unless the doctor self declares as fit for work and the manager agrees, in which case it can be accrued, as per Schedule 02 paragraph 74.
When known at the time, this should be raised immediately (orally) by the doctor with the clinician responsible for the service (typically, this would be the head of service or the consultant on-call).
The contractual terms specify when it is appropriate to mandate TOIL when rest requirements are breached, and these are listed as follows :
Where 11 hours rest in a 24-hour period has not been achieved (excluding on-call shifts.
- As per Schedule 3, paragraph 20. Any breaches of 11 hours’ rest in a 24-hour period (excluding on-call shifts) will be subject to TOIL, which must be within 24 hours.
Where 5 hours of continuous rest between 10:00pm and 7:00am during a non-resident on-call shift has not been achieved.
- Where during an on-call period, a doctor’s expected overnight rest is significantly disrupted, defined as causing a breach in the expected rest requirements, the doctor must inform their employer immediately, or as soon as reasonably practicable, and arrangements must be made for the doctor to take appropriate rest. TOIL in these circumstances must be taken within 24 hours.
Where eight hours of total rest per 24-hour non-resident on-call shift has not been achieved.
- Where it is expected that the rest requirements may not be met, rostered work on the day following the on-call period must not exceed five hours.
Where a doctor’s additional hours worked has caused, or threaten, a breach, of one the below limits on working hours, the doctor should take consideration of the need to ensure they are working safely and are not working excessive hours, when deciding whether to take pay or TOIL.
Doctors are professionally responsible for ensuring that their total working hours, including any work undertaken for other employers, remain within the contractual and regulatory limits set by the 2016 TCS.
A breach of the 48-hour average working week (across the reference period agreed for that placement in the work schedule)
The doctor should remain mindful of the hours outlined in their work schedule and, wherever possible, aim to work within these limits. When a doctor’s average hours are approaching the 48-hour threshold, TOIL is the advised option to ensure compliance with safe working practices. If a doctor’s average hours exceed the 48‑hour limit, because of additional hours which have been exception reported, then a doctor is strongly advised to choose TOIL to maintain safe working hours. Additionally, to ensure that no further breaches occur, a work schedule review may be required.
A breach of the maximum 13-hour shift length
If a doctor’s additional hours worked cause a breach of this limit on hours, it does not result in TOIL being mandated. However, if a doctor only had 11 hours of rest scheduled following the end of the shift before the start of their next shift, then it will have caused a breach of the 11 hours of rest requirement, and in such cases, TOIL is mandated. Therefore, often where the maximum shift length is breached, it will trigger a breach of the 11 hours rest requirement, and necessitate the mandating of TOIL.
A breach of a maximum of 72 hours worked across any consecutive 168-hour period
When a doctor is approaching or breaches the 72-hours worked in any 168-hour period, TOIL is the advised option.
A penalty rate must be levied when any of the rest requirements or limit on working hours set out in the 2016 TCS are breached, regardless of whether TOIL has been taken by the doctor or not. Where such breaches are proven , penalty rates and fines will be paid as set out in Annex A, as per Schedule 5, paragraph 23 of the 2016 TCS.
The management of TOIL related to exception reports is further detailed in paragraphs 19-25 of Annex D of the 2016 TCS.

Notification of TOIL

As per Annex D paragraph 19 of the 2016 TCS, when an exception report outcome of TOIL is granted, a notice will be sent from either HR or via the exception reporting software, depending on functionality, to the doctor containing:

an identifier for the exception report
the date of approval of the award
the duration of time off in lieu awarded
the deadline to contact their clinical team, which is either:

seven calendar days (10 calendar days until 4 August 2026)
or as mandated by a breach of rest requirements, as per Schedule 2 paragraph 74.

Arranging TOIL

The doctor should, at the outset of their placement, have been made aware of who has the authority to action TOIL once it has been approved and input it into their rota, to help them identify an appropriate individual to take any TOIL notices to. This will often be a rota co-ordinator, but it may vary depending on the organisation or department structures. We refer to this individual or individuals here as the "clinical team".

As per Annex D paragraph 20, once the notice of TOIL has been received by the doctor, they must contact an appropriate individual on their clinical team (preferably by email) within the time specified in paragraph 19. iv, to share the notice and inform them that TOIL has been awarded and needs to be scheduled. When the doctor shares this, it does not constitute an information breach.

If the doctor sends through their notice of TOIL approval to the appropriate individual on their clinical team, within 10 calendar days of receiving it, their TOIL must be mutually agreed and scheduled within seven calendar days (10 calendar days until 4 August 2026). This TOIL should be scheduled into a future shift in the doctor’s working pattern in the same placement (Annex D paragraph 21).

If the doctor sends through their TOIL notice more than seven calendar days (10 calendar days until 4 August 2026) after receiving it, clinical teams are encouraged but not mandated to facilitate its allocation (Annex D paragraph 22). If the rota can safely accommodate TOIL, then the request should be granted, and any rejection of requests should be explained to the doctor in line with local leave policies. In such instances where it has not been possible to schedule TOIL, following late notification by the doctor, the award of TOIL should revert to payment, to ensure compensation for time worked.

Auditing whether TOIL is being scheduled and taken

To check TOIL entitlements, the clinical team may also consider putting processes in place for checking the identifier on the TOIL notice against the TOIL awarded, for example via a spreadsheet, as long as the confidentiality of personally identifiable information related to exception reporting is maintained. This process would not change the doctor's responsibility to record that they have taken the TOIL on the system, but would be an additional optional process for checking entitlement.

The employer could also choose to audit the records retrospectively to ensure that the process is working as intended.

Managing TOIL and the end of training placements

Annex D paragraphs 23 and 24 describe what happens to TOIL granted towards the end of training placements.

In instances where TOIL is awarded within 10 calendar days of the doctor’s training placement or employment ending, the clinical team are encouraged, but not mandated, to facilitate its allocation. TOIL cannot be transferred to the doctor’s next placement or employer. Where facilitation of TOIL proves challenging, the clinical team should still consider the impact on the doctor’s well-being, working time regulations and safe working hours.

When TOIL is not facilitated, the clinical team must notify both the doctor and HR that the award must be converted to payment. Such notification must occur within 10 days of the award being shared by a doctor, and subsequent payment should occur within the timeframes specified in Schedule 2, paragraph 78.

Recording of TOIL

As per Annex D paragraph 25, after taking time off in lieu, the doctor must record its completion. The doctor should do so in as timely a manner as possible.

This does not remove a doctor’s entitlement to compensation, therefore TOIL can be converted to payment where; the award of TOIL was within 10 days of the end of their placement, or, where the doctor notified the clinical team more than 10 days after the award of the TOIL, and the clinical team has been unable to facilitate the TOIL, despite best efforts.

If any scheduled and agreed TOIL is subsequently not facilitated, the GOSWH may step in to ensure that appropriate TOIL or conversion to payment is granted if the doctor chooses to escalate to them (Annex D paragraph 24).