The 2016 contract came into effect on 3 August 2016, and was 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.
Q1. Why is the 2016 contract being introduced?
NHS Employers and the British Medical Association (BMA) have been lobbying for change to the new deal contract since 2008 – it is no longer fit for purpose. A scoping study in 2011 set this out and proposed principles for a new contract.
We have always wanted to reach agreement on a new, safer and fairer contract and had been working in partnership with the BMA junior doctors’ committee (JDC) since late 2012 when talks originally began on the new contract. We jointly agreed heads of terms for negotiation with the JDC and worked together during the formal negotiation period, which started in October 2013. The JDC walked away from negotiations in October 2014.
Conciliation talks between the government, the BMA and NHS Employers took place with ACAS in a bid to avert strike action in November 2015. A revised offer was made to the BMA in January 2016 that made concessions on several areas of conflict. Following further talks, including agreement on about 90 per cent of the items discussed, the government made an offer in March 2016 which included a further concession on Saturday pay, in the hope of reaching agreement with the BMA. The BMA again rejected the offer and initiated industrial action. Further ACAS talks took place with agreement finally reached in April 2016 and was the subject of a BMA referendum of BMA members.
Following the decision at referendum to reject the contract, on the 6 July the Secretary of State announced in the House that further talks were unlikely to bring resolution and that the new terms would therefore be introduced in England from August 2016, with the first doctors transitioning to the new terms in October 2016. A revised timeline has been published, reflecting the need to transition doctors to the 2016 terms at rotational dates when existing contracts expire.
Q2. 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).
Q3. 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).
Q4. 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.
Q4a. 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. The contractual rates of pay are set out in Annex A. 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.
Q5. 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.
Q6. For doctors in lead employer arrangements, how are any potential fines managed while the doctor is in a general practice placement? NEW added 4 January 2017
The nature of placements in GP practices mean that it is extremely unlikely that a guardian fine would ever be levied.
For a fine to be levied, it would have to mean that a doctor works on average more than 48 hours per week, or more than 72 hours in seven days. The nature of GP work schedules would mean this would be improbable, and even if hours did become excessive, time off in lieu should be granted to bring hours down. Similarly, it would seem unlikely that a trainee in a GP practice would ever have their 11 hour rest period reduced to fewer than 8 hours, and it would again seem unlikely that breaks would be missed on more than 25 per cent of occasions.
However, if for some reason a doctor working in a practice placement does breach the rules above 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.