ON 18th May the doctors union, the BMA, announced that it had agreed a new contract for junior doctors.
The BMA had completed eight days of secret talks at ACAS (The Advisory Conciliation and Arbitration Service) with the government and NHS Employers. Brendan Barber, former secretary of the TUC and now chairman of ACAS, was assisting with these.
A summary of the agreement was published by ACAS on 18th May and the definitive version came out on 27th May – ‘Terms and Conditions of Service for NHS Doctors and Dentists in Training 2016. Version 1 27 May 2016’.
This new contract must be opposed.
It destroys the foundations of the current contract – the New Deal of 2000. The latter brought down the weekly hours of junior doctors from around 80 a week in the 1990s to 48 hours a week by 2009. It made possible the current equity and decent pay that junior doctors (JDs) enjoy.
The new May 2016 contract removes the three main features of the 2000 current contract;
1. Annual pay progression
2. Banding, which weights take-home pay according to total hours worked and unsocial hours worked, and provides robust safeguards against unsafe working hours
3. Unsocial hours premia in the evenings and weekends, which promotes work life balance for JDs and their families.
In August 2015, the Junior Doctors Committee (JDC) spoke up and started vigorously campaigning against the consequences of destroying these three features, which had been dished up yet again in the recommendations of the Doctors and Dentists Review Body (DDRB) report of July 2015.
The JDC then won a 98% vote for strike action from its members in November 2015 to oppose them. The new 2016 contract, by accepting the dismantling of these three core features, plunges JDs into the consequences of their removal, that is SIGNIFICANT PAY CUTS, THE REMOVAL OF ROBUST SAFEGUARDS, AND INCREASED MANAGEMENT CONTROL.
The irony is, that the Chairman of JDC is now conducting roadshows throughout England promoting this new contract up until 17th June, when JDs start voting for or against this contract. The results will be made known on 7th July.
The pay proposals in the new May 2016 contract are:
• Basic pay for an average 40 hours a week, with four new nodal pay points for basic pay during training.
• It is proposed that basic pay rises by 10%.
• Up to eight more additional hours can be contracted into the work schedule to a maximum of 48 hours average a week (or up to 56 hours if Working Time Regulations 1998 (WTR) are opted out of). These are not pensionable.
• Hours during the day from 7am to 9pm would be standard hours paid at basic pay. This includes Saturdays and Sundays. There would be a small allowance for working weekends ( from 3% to 10% on basic pay according to frequency from a 1 in 8 to a 1 in 2).
• Unsocial hours Monday to Friday from 9pm to 7am would be paid with an unsocial hours premium of 37%. (current night pay is basic + 50%)
• Long night shifts starting from 8pm to 12pm, lasting eight hours or more and reaching up to 10am would also be paid at + 37%)
• Other additional hours pay include London weighting, and Flexible Pay Premia (FPPs) for special groups.
• Non-resident-on-call duties (NROC) where the doctor is on standby to come back into the hospital if required, would get an allowance of 8% of basic pay, with pay for any work performed at the relevant rate.
• JDs could apply to do locum work, inside the 48 or 56 hour WTR limit, but with first refusal from an NHS staff bank which would pay +22% on the basic pay for that grade of doctor.
SIGNIFICANT PAY CUTS
These are inevitable with the removal of automatic pay progression, banding, and the reduction of unsocial hours. The abolition of annual pay progression.
Replacing annual increments with uplifts at only four nodal points in a 10 year process, from Foundation doctor 1 to Specialty trainee 8, means a pay cut as doctors languish for several years on the same pay rate despite rising expertise. The more experienced grades of junior doctors from ST3 to ST8 will experience no increase in pay for five years.
We are told that money saved will pay for allowances for a new role of ‘Senior Decision Maker’ from 2019, with no details. As a consequence of abolishing automatic pay progression a number of special groups will be disadvantaged. e.g. those taking time out for maternity and paternity leave, or for sickness, or academic training or research and those working less than full time (LTFT). Hence the claims that the new contract discriminates against women.
The BMA has sought to address these side effects by negotiating some mitigation with Flexible Pay Premia (FFPs) and extra tuition. The May 2016 contract proposes paying FPPS to GP trainees, those in hard-to-fill training programmes, A&E and Psychiatry, dual qualification OMFS, and academics and exceptionally for those taking time out for beneficial activities for the NHS. There would be pay protection for some doctors changing specialties. FFPs, however, could be phased out in the future.
The removing of banding.
The Banding system provides pay supplements based on both the total hours worked and work in unsocial hours. These supplements are added to basic pay. B and 1 (C, B, A) are for 48 hours or fewer, with multipliers 1.2, 1.4 and 1.5 respectively. Band 2 B is for 48 hours and up to 2 hours – multiplier 1.5. Band 2A is for 48 hours and up to 52 hours – multiplier 1.8.
At the moment JDs are paid a basic rate for their grade, which applies for a routine 40 hour weekly time table. Few doctors do this. The rest get ‘banding’ of 20%–50%. The removal of banding would particularly affect those who perform the most work in unsocial hours, such as trainees in A&E, paediatrics, psychiatry, intensive care. Many of these posts are already hard to fill.
There have been numerous blogs in the media, from such trainees pointing out that they stand to lose 30% to 50% of their take home pay, despite performing onerous rotas including a lot of night work and weekends.
The new contract would make it difficult for them to continue, for example, living in London with its high rents and mortgages, whilst paying off £70,000 tuition fees, paying childcare costs etc. Indeed many have already gone abroad or are applying to do so.
Cuts to unsocial hours pay due to the reduced definition of these hours.
In the current 2000 contract, standard hours are from 7am to 7pm Monday to Friday (60 hours). Unsocial hours are defined as the evenings & nights from 7pm to 7am, and the whole of Saturdays and Sundays (108 hours). In the new May 2016 contract, plain time is from 7am to 9pm seven days a week, and so would extend standard hours from 60 to more than 90 per week.
Unsocial hours at nights only, would reduce unsocial hours from 108 to around 78 or less per week, a significant reduction. The proposed new allowance for working weekends is derisory, compared to the current definition of weekends as unsocial hours. Thus the new contract would cheapen work in the evenings and weekends, a major issue for JDs.
Pay cuts in new contract admitted in transition arrangements.
The government is aware of the extent of the pay cut they are inflicting on JDs by giving generous financial arrangements for transition arrangements to the new contract.
Middle and higher grade trainees would be allowed to actually stay working on the current 2000 contract until the end of their training! The BMA admits that converting to the new contract drops pay. ‘The principle is that junior doctors employed on the current contract will have their pay protected to ensure they do not see any drop in pay as a result of introduction of the new contract.’ (BMA FAQs on new junior contract 31.5.16).
SAFEGUARDS.
Safeguards on working hours are important, firstly to prevent JDs working excessively long hours without sufficient rest and becoming tired and not able to treat their patients safely.
Secondly, they are important to ensure that JDs are not exploited by employers and forced to work unpaid overtime. All doctors and nurses want to give the best to their patients, and are constantly working through breaks and after their hours have officially finished, to see to the last patient.
The new May 2016 contract proposes a complex system of work schedules, exception reporting and overview by a Guardian of Safe Working, as the solution. This would be in addition to WTR and a list of other modifications to scheduling of long shifts, rest periods and breaks that have been agreed between the BMA and employers.
Current safeguards under the Banding system.
These are collective. They are based on the average working week for all staff on the rota rather than an individual medic. The following description explains how. ‘The current contract demands a 75% compliance rate for most working limits across the rota. However when it comes to maximum length of duty in a single shift or minimum length of time off between shifts, hospital rotas must be 100% compliant.’
‘If a breach of these limits takes place, even on just one occasion, it can make the whole rota non-compliant. As a result, all the doctors on that rota would be paid the highest band three, 100% supplement – a significant financial penalty for NHS organisations.’ (HSJ article 2013) The robustness of this arrangement is demonstrated by the fact that only 1% of the workforce have received a band 3 since 2007.
The BMA and JDC wrote strong words of approval of the Banding safeguards in August 2015 (Analysis of DDRB recommendations) They said: ‘The banding system… has built in safeguards to prevent excessive hours and to ensure you receive adequate rest and breaks.
‘Your hours are checked regularly in monitoring rounds, which your employer is legally bound to respect… The banding system provides an effective penalty for employer against fatiguing and unsafe working patterns by giving them a financial interest in planning rotas and staffing wards properly.’
However in May 2016, the BMA agreed to a work review process instead. This consists of individual work schedules, work reviews, and exception reporting. An individual JD worried about training or work and safety issues would have to pursue a three tier procedure. A new Guardian of Safe Working employed by the trust(s) would champion safe working for trainees, and have a duty to investigate his/her complaints, which could be finally escalated up to the employer’s final stage grievance procedure, which would include trade union representation.
The Guardian would report to the trust board quarterly, on the exception reports and on rota gaps! A manager would have to give agreement before granting the payment of overtime, or time off in lieu (TOIL), (an arrangement nurses have found unreliable).
The Penalty payments for breaching WTR limits would be less than on the banding system and divided between the doctor and a special fund. It is significant that the Guardian would have to report rota gaps quarterly to the trust board. This implies that rota gaps are likely to continue for the foreseeable future.
This may explain why under ‘general duties and responsibilities’ the third requirement is; ‘Doctors will be expected to be flexible and cooperate with reasonable requests to cover for their colleague’s absences where the doctor is competent to do so.’ Sch 1 Para 3.
COMMENT ON THE POTENTIAL USE OF NON RESIDENT ON CALL (NRC)
It is clear from the attention given to non-resident-on-call in the document that this form of duty is becoming more important for the employers (pages 10-11 & 22-24).
It is much cheaper to employ a registrar on call from outside the hospital, than to employ them inside the hospital, as every hour of that work is paid. Doctors doing NROC are paid an allowance of 8% basic for being available, and get fully paid for phone advice and work when called in.
Patient safety concerns.
Because of the drive to save money, there is a constant tendency to reduce the number of junior doctors inside the hospital, and rely more on those NROC, which inevitably reduces patient safety.
Potential plans for service redesign
Amazingly, local arrangements are described whereby JDs can be asked to do this type of on call, for up to seven days consecutively, (Sch 3 para 27, P 22) or and even up to 15 days, if of ‘low intensity’ (Sch 3 para 35, P 23).
NHS Employers have stated that in the future they want a totally flexible workforce.
Would it not be convenient and cheap to pay an 8% basic rate retainer to have JDs covering for emergencies not just at an acute hospital but for such entities as independent treatment centres, dumbed down local hospitals, urgent care centres and multispecialty community provider new care models of the Five Year Forward View? Only work actually performed would count towards the weekly hours total average for WTR regulations.
The government’s plan for the NHS for the next five years, the ‘Five Year Forward View’, makes clear that a ‘flexible’ new ‘modern workforce’ is required. This must work in the ‘new models of care’ being introduced in place of the present ‘outdated models of delivery’.
To this end the FYFV states: ‘More generally, over the next several years, NHS employers and staff and their representatives will need to consider how working patterns and pay and terms and conditions can best evolve to fully reward high performance, support job and service redesign, etc.’ P 31.
This refrain is taken up in the DDRB 2015 report. ‘Junior doctors and consultants need to believe the new arrangements can and will be operated fairly, given that each set of changes leads to a degree of reduction in their control over working patterns.’
In the March 31st 2016 model of the JD new contract, the employers demanded the following: ‘We reserve the right from time to time in our absolute discretion to review, revise, amend or replace any term or condition of this contract and to introduce new policies and procedures, in order to reflect and respond to the changing needs or requirements of the organisation or the NHS.’
Similar sentiments are implied in the May 2016 new contract, in more muted terms.
Schedule 1 para 6 states: ‘A doctor is expected to engage constructively with the employer in the design of services and of safe working patterns to support service delivery objectives.’
Schedule 4 para 4, states that the JD may be asked to ‘work in or for other organisations (if required by the employer/host organisation)’. This could open the way for NHS employers to ask the JD to work in a service subcontracted to a private company.
Apparently, the BMA has agreed with NHS employers that the new contract should be regularly reviewed and updated, as soon as August 2018. The BMA has also agreed to join a group advising NHS England on policy related to seven day services (ACAS JDs contract agreement 18.5.16).
This new contract must be completely rejected and strike actions must be resumed.
The BMA must also demand of the TUC that it calls a general strike to remove the Tories as the only way to defend the NHS.
