COVID-19: BMA and NHS Employers joint advisory notice on contracts

Guidance on the joint advisory notice on consultants and SAS doctor contracts during coronavirus. Including changes to working patterns, SPA time and extra duties.

Location: England
Audience: SAS doctors Consultants
Updated: Wednesday 8 July 2020

In early May we published a joint advisory notice on ensuring that working arrangements for consultants and SAS doctors are only in place temporarily during the fight against coronavirus.

The joint statement makes clear that there has been no variation to nationally or individually agreed contracts and associated terms and conditions of service, even when individuals have temporarily changed their working patterns in response to the pandemic.

This guidance covers how the statement applies to you. You may also wish to refer to further guidance for consultants and SAS doctors on contractual matters.

 

Changes to working patterns

Any proposed changes to hours of work should include appropriate remuneration, rest time and adequate breaks.

Any revised work patterns must be accommodated within your normal contracted hours/PAs, including with respect to plain and premium time (where applicable).

Any additional work that goes beyond your contracted hours/PAs is voluntary and if agreed, it should be paid at an agreed non-contractual PA rate.

If you can’t change your working pattern

You may find yourself unable to agree to work a temporarily requested work pattern or roster, or to take on certain clinical responsibilities during the pandemic, for a variety of reasons.

  • Declining to accept temporary changes to your working patterns or additional work is without detriment.
  • You do not have to agree to change your normal hours.
  • If you have already changed your hours and wish to revert back, you have a right to do so.

 

Moving from on-call to a shift system (including resident on call)

Over the past four months there has been more evening working and some consultants have also agreed, temporarily, to work 'full shifts' overnight on the shop floor on consultant-delivered rotas.

All time spent at work and at the employer’s disposal is working time. Therefore, the entirety of a period spent resident on-call or on shift constitutes work and you are entitled to be paid for it.

Working in this way for long periods is likely to use up most of your weekly PAs very quickly and you do not have to agree to increase your PAs. Employers should consider whether this is the most effective use of consultant and SAS time, even in a pandemic.

Your contractual obligation

Consultants should also remember that working resident on-call is not a contractual obligation. Your contract protects you from working overnight unless you do so on a voluntary basis. Such activity is 'exceptional' and should be recognised as such in terms of payment and time off to recuperate.

If you have agreed to work in this way during the pandemic, this will be on a temporary basis only and you can opt out of such an arrangement without detriment.

It goes without saying that these are exceptionally difficult times. It is alright not to be alright. There will be periods when you need to prioritise your personal wellbeing or that of your families. This is alright too. We are all different, and we cannot always say “yes” to everything.

BMA consultants and SAS committees

Extra duties

Our suggested method for contracting additional clinical activity is payment by enhanced PAs, ie by reducing the number of hours that makes one PA.

The advantage of this is that all consultant and SAS doctors are rewarded equally. Additional work is likely to be attractive to a larger proportion of consultants and SAS doctors, so offers a more robust rota.

This is a fair and transparent process for remunerating consultants and SAS doctors across all specialties for their extra scheduled work during this difficult time.

From the 2003 terms and conditions, the standard contractual programmed activity is for four hours. Furthermore, if you have agreed at job planning to work after 7pm in the evening or at weekends, a PA comprises three hours - but you can work for four hours and be paid at an additional rate. In other words, 'time and a third'.

Taking on extra PAs

Taking on extra PAs on top your normal job planned PAs falls beyond the current terms and conditions of service.

We note the agreement between the BMA and Welsh Government. We also note the long-standing practices of employers in line with the Royal College of Emergency Medicine’s position statement on sustainable working patterns. This recommends that PA rates should be at least two hours = one PA for time spent working routinely after 10pm at night during premium time.

Our recommended out of hours remuneration rates

The table shows our recommended remuneration rates, in the event of a consultant or SAS doctor’s existing job plan or normal working arrangements changing as a result of COVID-19, and being required to be either working or in work.

Time PA length
Monday – Friday, 7pm – 10pm 3 hours
Saturday, Sunday and public holidays, 7am to 10pm 3 hours
Monday - Sunday, 10pm to 7am 2 hours

Previously agreed local rates, when satisfactory to both sides, should continue.

'Time off in lieu' at the appropriate PA rate can be offered as an alternative to payment.

Temporary 'ghost' or standby rotas again fall beyond the current terms and conditions of service and individual’s agreed job plans. As such, they are voluntary, and agreed payment rates must be established.

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Job planning

SPA (supporting professional activities) time

There has been no agreement nationally that SPA activity will be suspended or 'swapped' for additional clinical activities during the pandemic, either in full or in part.

Our view is that changes to working patterns are always best done through agreement. If you find yourself asked to convert SPA time to more direct clinical care temporarily, your employer should work with you to ensure that it is done safely and proportionately.

Undertaking additional clinical activity

If you undertake additional clinical activity, your SPAs should be maintained and the extra clinical work fully remunerated at a mutually agreed rate. This means that changes do not have an effect on your ability to plan and deliver a safe, effective service. Employers moving forward cannot simply ‘swap’ your SPA for direct clinical care time – they must maintain your SPAs and pay you the additional PAs. It is recognised that, at the peak of the pandemic, some doctors agreed to convert temporarily SPA time to DCC, but this should no longer be the case.

When discussing this with your employer it is worth emphasising the important clinical and educational governance reasons for this approach.

Teaching and training

In addition to the educational supervision of trainees, consultants and SAS doctors are also responsible for the clinical supervision of teams which are often bigger and more fluid than usual.

These teams can include juniors (and sometimes consultant colleagues) from outside of your specialties. This takes more time. It is unlikely that there has been a reduction of the time you spend on teaching and training.

Maintaining skills for personal development

In addition to keeping up with developments in your specialty area, you will be spending considerable periods of time keeping abreast of COVID and best working practices related to it. As such, there is unlikely to have been any decrease in the amount of time required for maintaining and developing your skills by professional development.

Management activity

For many management activity has increased with regard to:

  • planning and delivering new service models
  • providing governance and leadership within your organisations
  • clinical assurance and oversight to your trust.

 

Annual, study and professional leave

Under the Working Time (Coronavirus) (Amendment) Regulations (2020) you are entitled to carry over 20 days of annual leave over a two-year period.

NHS Employers have stated where employees cannot use their full entitlement of annual leave because of the pandemic, employers should consider revising their local policies to exercise maximum flexibilities in relation to carrying over of leave to the next leave year.

As study and professional leave operate across a three-year cycle they can be bound over such that you should not lose your entitlement because of the pandemic. It follows that agreed local study leave budgets should similarly roll over.

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