The Working Time Regulations 1998 (WTR) will be the fallback position for the duration of coronavirus.
Read more about the steps to take in the joint statement from the BMA and NHS Employers, this also covers implications for LTFT trainees.
From 5 August 2020, all junior doctor rotas in England must be compliant with all the contractual rest and safety requirements of the 2016 TCS (terms and conditions).
This follows the BMA requesting that the joint statement be withdrawn as COVID related service pressures have reduced and in the interest of junior doctor health and wellbeing, read our full statement on our withdrawal from the statement for more detail.
The guidance below covers your questions on the statement, and the practicalities of what should happen for those who have or are working on non-compliant rotas up until 5 August 2020.
How should my pay be affected if my rota is amended or an emergency rota is introduced?
The revised / new rota must be appropriately analysed to calculate your pay in accordance with the requirements of the 2016 TCS, even if the new rota does not comply with all the hours and rest limits of the 2016 TCS.
This includes the provisions regarding basic / enhanced hours, average weekly hours, weekend allowance, on-call allowance, etc.
This does not need to take the form of a full formal work schedule, but must at a minimum contain:
- a clear rota template
- calculation of hours and rest requirements (including prospective cover of out of hours)
- pay breakdown.
Issues with rostering software
We are aware that some of the rostering software platforms have been unable to calculate pay, with the requirements of the 2016 TCS, when the rota does not comply.
We have now been assured that all the main rostering software platforms are able to calculate pay for rotas which do not adhere to all the rules of the 2016 TCS.
If your employer is currently unable to calculate the correct pay for your rota due to issues with their rostering software, the following steps should be followed:
- they should inform you of this issue
- they should continue paying you the same amount as you are / were paid on your current or previous rota
- once the rostering software is able to calculate pay for non-compliant rotas, your employer should recalculate your pay based on actual working pattern of your revised / emergency rota
- this pay should be backdated to when the revised / emergency rota was introduced.
Pay for rotas with a weekend frequency greater than one in two weekends
On 8 July, the BMA agreed joint guidance with NHS Employers. It informs employers that all rotas that have exceeded a weekend working frequency of greater than one in two weekends, as a result of the joint statement, must receive additional remuneration.
Despite our best efforts, the Government, through DHSC, believed this was best resolved through local discussions rather than agreeing a national arrangement.
These local discussions should now be taking place at your employer, via the local negotiation committee, if your employer enacted rotas with a frequency greater than one in two weekends. We are supporting these local discussions through providing briefing materials to local BMA reps. You can contact your contact your local BMA junior doctor rep to find out how these discussion are progressing.
The joint guidance states that any agreement reached must be applied retrospectively to the full period in which these rotas existed.
Does this statement represent a permanent change to the 2016 TCS?
No, both the BMA and NHS Employers are clear that the provisions within this statement are purely a temporary measure in response to the COVID-19 pandemic. As the pressures of the pandemic have reduced we have given notice to NHS Employers of our intent to withdraw from the statement on 5 August 2020.
All junior doctor rotas will have to comply with the hours and rest requirements of the 2016 TCS from 5 August onwards.
What steps does my employer have to take to relax the 2016 TCS?
When it is not possible for the working hours restrictions and rest requirements of the 2016 TCS to be implemented, then your employer may suspend part(s) of the TCS.
1. Pursue all options
However, your employer must be able to demonstrate that they have pursued all other options to release additional capacity. These measures could include:
- cancelling non-urgent elective procedures
- curtailing outpatient activity
- redeploying staff
- considering how staff stepping up or down might be appropriate
- redesigning services to release capacity.
If your employer still believes a relaxation is necessary then they should also demonstrate how it is impossible for them to adhere to all the hours and rest requirements of the 2016 TCS.
2. Get agreement from affected junior doctors
Where the employer has demonstrated the above, then they should seek the agreement of the affected junior doctors.
An employer should engage with doctors to identify solutions and get agreement on when they plan on implementing this relaxation and how.
Given the realities of the current pressures on the NHS, employers may not always be able to provide the previously expected levels of notice for all junior doctors to feel properly consulted. Timescales may be short, and require a more rapid process.
3. Provide notice
At a minimum, we would expect an employer to provide a sufficient amount of notice. This will allow doctors to raise individual concerns they may have which would make the proposed rota unmanageable for them.
4. Work around personal concerns
Where a junior doctor has raised a personal concern regarding the proposed rota, then they should not be expected to work on a revised / new rota until an agreement has been reached over how these concerns will be mitigated or alternative measures have been agreed.
What should I do if I have a concern with the proposed rota?
- You should make your employer aware of these concerns at the first opportunity, outlining why you believe you will be unable to work the proposed rota.
- Your employer should then discuss these concerns with you and explore any possible solutions, or any alternative arrangements that can be made for you.
- In the absence of any mutually agreed measures your employer cannot expect you to work on the proposed rota if your individual concerns have not been addressed.
- It is up to each individual doctor to decide whether they are unable to work on a rota with any of the hours and rest requirements of the 2016 TCS suspended.
- Please contact the BMA if you require assistance with raising concerns over a proposed rota.
The new rota results in me working above my LTFT percentage - is this allowed?
No, the training percentage of an LTFT (less than full time) doctor must be protected. In addition, if an LTFT doctor decides to remain as an LTFT doctor then their rostered average weekly working hours must remain below 40 hours per week.
An LTFT doctor may voluntarily decide to temporarily increase their LTFT percentage in response to the pandemic, but an employer cannot request that an LTFT doctor work above their percentage. An LTFT doctor may also voluntarily choose to work additional shifts on an ad-hoc basis.
Where an LTFT doctor does decide to increase their LTFT percentage, then they should be provided with a revised work schedule with their pay adjusted in accordance. HEE have clarified that any doctor who does increase their LTFT percentage during the pandemic will be able to return to their original percentage at any point.
What are the Working Time Regulations and rest limits?
The WTR (Working Time Regulations), which implements the EWTD (European Working Time Directive) in law, came into force on 1 October 1998.
It sets out a number of safeguards for workers, the following are particularly relevant to workers in the health service:
- a limit of an average of 48 hours worked per week, over a reference period
- a limit on night work for night workers
- 24 hours’ uninterrupted rest every seven days, or two such rests every 14 days, or a single 48 hour rest every 14 days
- a daily rest entitlement of 11 consecutive hours
- an entitlement to a minimum 20 minute rest break where the working day is longer than six hours
- a requirement on the employer to keep records of hours worked.
My employer has asked me to opt out of the WTR - what would it mean for me?
Opting out of the WTR is a voluntary decision for each individual doctor and no employer can demand a doctor opt out of the WTR.
The BMA believes this option should be retained only for those doctors who are able to determine their own working hours.
If you opt out of the WTR, then your maximum average weekly working hours would be restricted to 56 hours per week, rather than the usual 48 hour restriction.
All other hours and rest requirements of the 2016 TCS would apply to you, unless your employer has implemented a relaxation of the hours and rest requirements as per the above statement, which would then need to be taken into account separately.
Opting out during the pandemic only
If you are happy to opt out of the WTR, then you can at the time state that this is for a specified period or indefinitely.
- The BMA recommends all opt-outs signed during the current pandemic have a specific time limit from the outset.
- If you have signed an opt-out, you can withdraw this opt-out at any time.
- You must provide your employer with seven days’ notice, although the notice period can be up to a maximum of three months.
- We would recommend that you ensure that any opt-out you sign has the shortest possible notice period.
- The optional WTR opt out does not apply to LTFT trainees, as to be working less than full time you need to work less than 40 hours per week.
What if an employer invokes regulation 21 of the WTR?
Regulation 21 of the WTR identifies ‘special cases’ in which workers will not be entitled to benefit from certain rest and breaks entitlements.
The special cases include 'where the worker’s activities are affected by an occurrence due to unusual and unforeseeable circumstances, beyond the control of the worker’s employer' or 'exceptional events' or 'an accident or the imminent risk of an accident'.
If an employer invokes regulation 21 of the WTR, junior doctors will not be entitled to the following rest requirements:
- a minimum 11-hour rest in any 24-hour period
- 24 hours’ uninterrupted rest every seven days, or two such rests every 14 days, or a single 48 rest every 14 days
- an uninterrupted rest break of at least 20 minutes every six hours
- a limit on night work for night workers.
In the event that regulation 21 is activated, the controls of regulation 24 which require equivalent 'compensatory rest' to be given, still apply in most circumstances.
Let us know
If your employer is considering invoking regulation 21, then please inform the BMA by emailing [email protected] with the subject line including 'Reg 21:'. Please provide us with all the details available to you regarding this case.
We will raise this on your behalf with NHS Employers. Please be assured that you will remain anonymous when discussed with NHS Employers.
What flexibilities are currently possible within the contract?
The contract currently allows for some flexibility in clearly defined circumstances.
- Whilst all reasonable steps should be taken to avoid rostering junior doctors at a weekend frequency greater than 1 in 3, where there is a clinically defined reason trainees may be rostered to work at a frequency of 1 in 2 weekends.
- A doctor may choose to voluntarily opt out of the WTR average weekly limit of 48 hours worked. Where a doctor has opted out of the WTR average weekly working hours, overall hours are restricted to a maximum average of 56 hours per week.
- No more than four long shifts and a maximum of seven shifts of any length should be rostered or worked on consecutive days. Until August 2020 the maximum number of consecutive shifts can be increased by one to a maximum of five and eight respectively.
My employer has incorporated fixed leave into my rota - is this acceptable?
Fixed leave is not compliant with the 2016 TCS.
However, given the current pandemic it could be acceptable for fixed leave to be incorporated into a rota, with the agreement of the affected junior doctors, if it is an emergency rota that is directly related to COVID-19.
The primary purpose for leave is to ensure junior doctors are adequately rested and prevent fatigue. Many doctors are currently struggling to take any leave due to the current service pressures, and this may be an appropriate temporary measure.
However, where fixed leave is being proposed within an emergency rota, the employer should be able to demonstrate that the arrangement of the leave (ie the distribution and frequency) is acceptable and approved by the junior doctors on the affected rota.
Implementation of fixed leave must be a temporary measure, once the pressures related to COVID-19 subside fixed leave can no longer be incorporated into a rota.
Consideration should also be given to allowing doctors to decline and roll forward leave where this is preferable or mutually agreeable.
Where there are not clear justifications related to COVID-19 to implement fixed leave, then it is not acceptable to introduce fixed leave.
My employer has developed a 'float / shadow' rota - is this acceptable?
We are aware that some employers are seeking to develop and implement ‘shadow’ or ‘float’ rotas, where doctors must be available for defined periods with the potential to be called upon at short notice to perform a full shift.
This practice is not compliant with the 2016 TCS.
However, given the current pressures, this practice could be temporarily accepted if, for the purposes of hours and pay, the rota contained the most intensive option in terms of shift a doctor could be asked to work that day.
The BMA recommends the doctor should be paid the value of this full shift, regardless of whether they are called in or not. Any pay arrangements for such rotas will be subject to local negotiation and agreement.
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