Many of you substantially changed your working patterns during the first wave of the pandemic. The rapid need to revise rotas and ways of working meant that changes often were brought in with very limited discussion. Unfortunately, this meant that for many of you these changes were neither explicitly agreed with you nor adequately remunerated.
NHS board employers do not have the same excuses this time round. We have tried repeatedly over the last few months, at both national and local level, to reach agreements on appropriate arrangements for those who are asked to substantially change your working patterns at short notice.
This has been a slow process, with most NHS boards yet to agree a deal, requiring us to develop this guidance on how to ensure you are treated fairly.
Agreement to vary job plan
Some departments may attempt to simply reissue previous 'COVID emergency' rotas with an expectation that you will once again adhere to these without question. This is not acceptable.
All your existing T&Cs (terms and conditions of service) remain in place at all times. Any changes to your working patterns can only be through the established job planning process. This includes the mediation and appeals processes where necessary. Temporary changes to your working patterns require your explicit agreement.
Discussing temporary changes
We recommend that any temporary changes proposed by management are discussed by you and your colleagues as a whole team. You should consider elements such as:
- how to flex emergency cover in the case of a local outbreak
- if high numbers of staff are self-isolating or shielding
- what elective work has to be dropped or must continue
- how to arrange staffing to meet those demands.
However, while team discussion and service planning will make individual changes easier to agree, this does not compel you to agree to revised arrangements for you. The status quo position of your last agreed job plan will be the default position if changes cannot be agreed.
The T&Cs require a job plan review and agreement on any changes before any changes to working patterns are implemented. All the T&Cs provisions, including the mediation and appeal processes, continue to apply at all times.
Remuneration and pay
The existing T&Cs for consultants and SAS doctors were not designed with shift-working in mind, and did not cover the substantial changes asked of many career grade staff at the start of this emergency.
A national approach
We proposed a temporary national solution to Scottish Government where substantial disruption to normal working patterns (for example, a move to overnight shift working) would be adequately remunerated.
This meant all out of hours worked between 8pm and 8am for consultants, or 7pm and 7am for SAS doctors, would be temporarily paid at a two hour PA rate (double time).
We believe that this is a reasonable approach. It reflects the intensity of the work and level of disruption to work-life balance caused by such working patterns. It also reflects the local arrangements in place pre-COVID across a number of specialties in several NHS boards across Scotland where shift working had already been introduced.
However, despite our best efforts to reach agreement, our proposal was rejected in the summer. Instead Scottish Government indicated that local agreements should be reached.
BMA local negotiating committees have been engaging with NHS board management to try to reach these local agreements. NHS Ayrshire and Arran has now implemented an agreement that is largely based on our proposal to Scottish Government, and we remain hopeful that others will follow.
It is important that any 'ad hoc' additional hours are remunerated and the rate for this has to be agreed with you. While there are agreed rates in the T&Cs for consultants for both resident on-call and waiting list initiative work, they do not have other rates for additional work which do not fit under these provisions.
There may be established local arrangements in place where you work, or your board may offer bank rates, but you are under no obligation to take on these additional hours.
If the additional work being offered meets the definition of resident on-call or waiting list initiative work then you should be paid the appropriate rate.
Agree in writing
You should agree (ideally in writing) the remuneration in advance of agreeing to any additional hours or temporary working patterns that vary from your agreed job plan.
All NHS boards are expected to have a local agreement with the LNC which provides enhanced rates for consultants undertaking 'resident on-call' work.
In some boards these arrangements may also apply to SAS doctors undertaking the same work. If you believe that the work you are being asked to do falls into this category, then you should agree payment at the locally agreed rate in advance of doing the work.
If you are a SAS doctor and are asked to ‘act up’ to a higher level of responsibility, you should be remunerated in line with the grade at which you are working and level of work undertaken.
Returning to your usual job plan
We issued joint guidance with Scottish Government and NHS Scotland employers in September 2020 which makes it absolutely clear that individual job plans in place prior to the emergency short term changes required by the COVID pandemic remain extant.