Junior doctor England

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Junior doctor contract 2016 myth-buster

FY2 Adele Flowerdue and George Allan at work in the emergency department of North Manchester General hospital. manc160915. full consent.

The move to a new junior doctor contract has been challenging for many doctors, especially when facts and opinions have been misrepresented.

This myth-buster sets out the latest information about the contract, your rights and responsibilities, and where you can find more support.


Get the facts

  • Transition

    Myth: the BMA has just accepted the contract now.

    We have stated clearly and consistently that we reject the contract and are in an active dispute with NHS Employers.

    However, we have to accept reality. Many of our members are now employed under the new contract and we have to support them.


    Myth: you can choose to go onto the new contract even if your employer hasn't offered it to you.

    The new contract was introduced in a phased transition from October 2016 to October 2017. Most trainees in England are now on the new contract.

    Those on lead employer contracts will continue on the 2002 contract until they receive their CCT (Certificate of Completion of Training).

    GP practices are independent contractors and can chose whether to use the new contract.

    Lead employers may offer you the option of moving to the new contract, but they don't have to.

    If the contract was collectively agreed, all trainees could access it, but we are still in dispute. This protects those who don't want it from having to have it, but doesn't allow those who would want it to opt in.


    Myth: you still just get your cash floor even if the new contract pay is higher.

    If you have section 1 ('cash floor') pay protection and in the four year protection period your new contract pay would be higher, you will receive the higher amount.

    If at any point in the four year period your new contract pay dips below the cash floor, you are protected again.

    You will never earn less than the amount earned the day before transition.


    Myth: you can't get the LTFT (less than full time) pay premia on top of pay protection.

    This is not true. The temporary transitional pay premia of £1,500 applied to section 1 protected trainees who were LTFT at the point of transition is paid in full on top of any other payments, including pay protection.

    The fixed sum is for all trainees who are doing any proportion of FTE (full-time equivalent); it is not pro-rated. It is paid annually as long as you stay LTFT.

    If you were absent on maternity leave at the time of transition but return LTFT, you will receive it too.


    Myth: GP trainees must offer their service for locum work to their host practice first.

    GP trainees are not required to give their host practice first refusal when undertaking locum work.

    Arrangements for locum work for GP trainees are the same as for all other trainee groups. Time must be offered first to the service of an NHS staff bank, but only for work equal to your grade and competences.


  • Raising concerns

    Myth: the new contract still doesn't offer whistleblowing protection.

    Statutory whistleblowing protection covers the employer/employee relationship.

    HEE (Health Education England) has accepted it too has significant influence over a trainee's career, although it isn't the employer.

    A new legal agreement has been made to extend statutory protection to the HEE/trainee relationship. This can't help those with claims made before the agreement came into place, but will help those making claims in the future.


    Myth: exception reporting is always a form of whistleblowing.

    Exception reporting generally would not be considered a protected disclosure. Most exception reports are made because your work has varied from your work schedule, which isn't illegal.

    If you exception reported a breach of the upper safety limits/rest requirements, this could be considered a qualifying disclosure as there is a possible impact on patient safety.

    If you received detrimental treatment by your employer as a result of an exception report, you would be covered by normal statutory protections for employees.

    If you received detrimental treatment by HEE as a result of an exception report, the HEE agreement would apply. This would almost certainly never be required, as exception reports are a feature of the contract between you and your employer only.


    Myth: it might negatively impact my career progression if I exception report.

    This is absolutely not true. The BMA's top priority is to support our members to exception report confidently and to receive the benefits of this.

    Exception reporting needs to be both part of and a driver of wider cultural change. It isn't about admitting 'weakness' or complaining - it's about being honest about the huge pressures the NHS is under and working together to fix them.

    If you feel unable to exception report, tell us. There's lots we can do to help you.


    Myth: there's no point in exception reporting.

    Exception reporting is a contractual right. It is unacceptable for your employer to stop you accessing this in any way, including with pressure or bullying.

    The new contract clearly requires a resolution to all exception reports - either pay, TOIL, a work schedule review or all of the above. The outcome should be agreed with you.

    If your employer won't provide an acceptable resolution, tell us and we will challenge them.


    Myth: I need to get prior authorisation before submitting an exception report.

    You do not need to seek authorisation of any kind before submitting an exception report.

    Exception reporting is a mechanism to inform the employer when work has varied from the work schedule. It is not a request.

    There should be an opportunity to provide 'an outline of the steps the doctor has taken to resolve matters before escalation (if any)', but this is not a requirement to submit a report.


  • Safe working

    Myth: the new safety limits on working hours make doctors' lives worse.

    The 2016 junior doctor contract includes limits on working hours and requirements for rest that include the legal protections of the Working Time Regulations and go beyond them.

    These rules protect doctors and their patients from unsafe working practices. With Brexit on the horizon, it is the BMA's position that the WTR protections should stay - both in law and in the junior doctor contract.

    It is not true that high quality training can't be delivered within safe hours. It is the employer's responsibility to make sure there is enough resource and planning to achieve this.


    Myth: my employer can charge me for exercising my right not to drive home after a night shift.

    Schedule 12, paragraph nine of the contract is designed to make sure no doctor has to travel home from work if they are too tired to do so safely.

    If you feel unable to drive home due to tiredness, your employer must provide you with a place to rest in the hospital or, if a rest facility is not available, make alternative arrangements (i.e. pay for a taxi or a B&B room for you).

    You should not be charged for this. If your employer tries to charge you, tell us and we will challenge them.


    Myth: there will no longer be monitoring and rebanding for those staying on the 2002 contract.

    Some doctors will remain on the 2002 junior doctor contract. For example, those on lead employer contracts will stay on the same terms until they CCT.

    If you are still on the 2002 contact, monitoring and rebanding continue to apply to you. Your employer will be in breach of contract if they don't keep allowing you to monitor and hold banding appeals.

    Technically, exception reporting is only for those on the new contract. Some employers are offering it to those on other contracts too, but this is at their discretion. You can't necessarily expect to get pay/TOIL if you are exception reporting and not on the 2016 contract.

    The contract includes detail on how to change banding where necessary for those with section two pay protection.


    Myth: there is no guidance outlining the hours that GP trainees can be rostered for under the 2016 junior doctor contract.

    Guidance has been published separately by the BMA and NHS Employers confirming that GP trainee work schedules must roster trainees for 40 hours per week on average, inclusive of out-of-hours work.

    Work schedules must follow the agreed COGPED (Committee of General Practical Education Directors) structure for sessions: seven clinical sessions, two structured educational sessions and one independent educational session on average per week.

    Additionally, rotas can no longer contain split shifts. Duties must be continuous within a shift and there must be 11 hours rest before the next shift or duty.

  • Working patterns

    Myth: I have to give my employer first refusal on all my locum work.

    If you want to do locum work in your spare time, you must first offer your specific availability to an NHS staff bank, but not necessarily a local one.

    If the NHS staff bank does not need you at the time you want to locum, or can only offer work that would involve you acting down, then you are free to locum elsewhere.

    This rule is about offering specific shifts, not your entire spare capacity. It also doesn't include volunteering, for example with the St Johns Ambulance.

    There is no requirement to do locum work, and this rule only applies if you choose to locum.


    Myth: I have to opt out of the WTR (Working Time Regulations) before I am able to do locum work.

    Your employer cannot require you to opt out of the WTR to do locum work.

    Trainees are able to undertake locum work in any spare time in their work schedule, up to a maximum of 48 hours per week on average, without opting out of the WTR.

    If you want to work more than 48 hours per week on average and use any further spare time for locum work, you can choose to opt out of the WTR. This increases the maximum limit on your hours to 56 per week.

    You must make sure that your locum work remains compliant with the work and rest limits set out in your contract.


    Myth: it is not possible to roster out-of-hours work for GP trainees under the new rules.

    This is not true. Out-of-hours work can be rostered without splitting shifts and with out-of-hours time offset from clinical sessions in order to maintain the rota at an average of 40 hours per week while achieving training outcomes.

    Like many pre-2016 contract rotas, existing rotas will need to be redesigned to be compliant with the new safeguards.

    The BMA is producing detailed guidance for GP practices employing trainees under the 2016 contract. This includes sample best practice rota templates for rostering inclusive of out-of-hours work.