COVID-19 terms and conditions: SAS doctors and consultants

Changes to working patterns and pay rates for consultants in England

Audience: Consultants SAS doctors
Updated: Monday 18 January 2021
Topics: COVID 19, Contracts

Infection rates are rising once again and we are in a second wave. The BMA is concerned about the impact that dealing with a second wave will have on an already stretched and fatigued workforce. There are some important differences that mean the second wave may be more difficult to manage than the first.

We have therefore produced this guidance on developing new working patterns, incorporating many of the lessons learned from the first wave of COVID-19.

 

Job planning

Job planning will be based on a partnership approach. The clinical manager will prepare a draft job plan, which will then be discussed and agreed with the consultant.

Your contractual protections
Agreeing temporary changes to your job plan

A change might include swapping a planned clinic, theatre session or procedure list for an alternative direct clinical care session to directly support the trust’s COVID-19 response.

We would recommend that if you agree to such a change that you clearly state and confirm in writing that you agree to do so on a temporary basis and is not a permanent change to your job plan.

Download a sample letter outlining the agreement of a temporary change in job plan.

We would also recommend that you retain the right to return to your pre-existing job plan at a time of your choosing and this should be stated in the temporary job plan.

It is advisable in agreeing temporary change that you do not increase your overall PA allocation in order to reduce the risk of burnout. Work to be done on top of your contracted PAs this should be remunerated via extra contractual payments or time off in lieu.

Part time workers

You are not compelled to increase your hours or move to full-time working. If you choose to agree to increase your hours during the pandemic, the same guidance applies as for full time workers.

You should make it clear in writing that the change to your working hours is temporary and that you have the right to revert to your pre-existing job plan. If you choose to do additional hours, these are extra-contractual and as such you should be offered extra-contractual rates for this work.

Recommended length of PAs

It is vital that appropriate rest is available to maintain health and wellbeing.

In order to protect staff and avoid burnout, the Royal College of Emergency Medicine have recommended reducing the number of hours that constitute a PA for high intensity working undertaken in premium time and overnight.

We consider almost all COVID-19 related work and 'catch up work' to be of high intensity and as such recommend that a fewer number of hours constitute a PA for COVID work in line with RCEM guidance. This will help protect against fatigue and burnout.

Many specialities will be working at a similar intensity to emergency medicine consultants during the COVID-19 pandemic. The BMA believe that the length of a PA should be reduced in a consistent manner for all consultants who are working at comparable intensity.

To support consultants and trusts, we have suggested the below framework to be used for discussion locally in agreeing rates for extra contractual work.

Table of recommended length of programmed activities

7am - 7pm 7pm - 11pm 11pm - 7am
(for high intensity working)
Monday to Friday 3 hours per PA 2 hours per PA 1.5 hours per PA
Saturday, Sunday and bank holidays 2 hours per PA 2 hours per PA
High intensity work

We consider almost all COVID-19 related work and ‘catch up work’ of high intensity and as such recommend that a fewer number of hours constitute a PA for COVID work. This will help protect against fatigue and burnout.

Out-of-hours work

Non-emergency work at weekends or outside the hours of 7am to 7pm Monday to Friday must be scheduled in advance by mutual agreement. You have the right to refuse to undertake such work without suffering any detriment as a result.

If your specialty by its nature involves dealing routinely with emergency cases, eg in A&E, then ‘non-emergency work’ for these purposes includes your regular work.

In practice, this means that you are entitled to refuse to do work such as planned ward rounds, planned theatre/procedure lists, and planned radiology lists if it is not part of an existing on-call arrangement or already agreed within your job plan.

If you choose to do this work, you are entitled to agree for this to be paid at extra-contractual rates.

Resident on-call shifts

Consultants are increasingly being asked to undertake resident on-call night shifts or twilight shifts. These working patterns were not envisaged when the contracts were agreed.

The 2003 contract sets a maximum limit of two PAs per week for emergency work arising from on call. Schedule 7, Clause 6 of the consultant contract sets a limit of three PAs occurring in premium time.

Consequently, the BMA does not believe that three hours per PA is appropriate for frequent twilight shifts or resident on-call/night
shifts work patterns.

All time spent at the workplace is considered work and should be both paid and contribute to your PA allocation. This also applies to resident on-call shifts.

Shadow on-call rotas

A number of organisations have implemented shadow on-call rotas to cover sickness absence or 'second on' on-call rotas to come in if 'first on' consultants are busy.

Again, this is a change to your job plan and can only be implemented by mutual agreement.

If agreeing to this change, it is essential that you make clear to your employer in writing that this is a temporary change and that you reserve the right to revert to your pre-existing job plan.

Some trusts have refused to remunerate these shadow rotas rotas beyond the existing frequency and PA rates for predictable emergency and emergency work within the contract. This is not appropriate and in some cases, simply altering the on-call frequency may result in only a modest increase in remuneration (for example, changing from 3% to 5% supplement), despite the impact on the working life of the doctor being very significant.

It needs to be acknowledged that by undertaking a shadow rota, the doctor needs to remain available and that this causes significant restriction on their time.

The BMA recommends that these rotas are paid at a 'standby rate' that applies when you need to be available but not working. The BMA minimum recommended standby rate when not working but available is £50 per hour.

Any time that is subsequently spent undertaking predictable or unpredictable emergency work during the 'standby period' is remunerated at £422 per PA.

Agreeing remuneration

Wherever possible and by agreement with the consultant, reallocation of existing PAs (programmed activities) and time off in lieu should be offered rather than simply increasing hours in order to reduce the risk of burnout.

We recognise that simply repurposing your PAs to accommodate temporary COVID-19 working is not always possible and that you may be asked by your employer to work outside your existing contract of employment or agreed job plan. You have the right to decline such work and it is important for your wellbeing that you don’t feel pressured to work too many hours.

However, if you do agree to work additional and/or extra-contractual hours, these should be properly remunerated with additional payment for these additional hours, with the rates negotiated locally and in advance, confirmed in writing.

You can download this sample letter for consultants for you to send to your clinical director that specifies your agreed rates of remuneration.

If your trust declines these rates

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 must be without detriment. It is important to remember that:

  • 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.
BMA negotiations for national rates

The BMA believes that a nationally agreed rate for out of hours working would be helpful for both employers and doctors.

During the first wave, the BMA approached the DHSC (Department of Health and Social Care) and NHSE (NHS Employers) in order to seek agreement on this.

Unfortunately NHSE and DHSC were not given a mandate by government to agree rates for extra-contractual work and instead suggested that this was left to local agreements.

This led to a variety of different rates being agreed, and on occasion different rates were agreed by different consultants or SAS doctors working within the same trust.

Clearly this is not equitable and consumed unnecessary amounts of discussion time that could have been better utilised caring for patients.

As we are now entering the second wave, we have once again approached NHSE and DHSC to discuss nationally agreed rates for extra-contractual work. We are awaiting a formal response but suspect that they will once again prefer to leave this to local agreements.

Principles when determining the extra-contractual rate for a PA for consultants

The rate should be equal for all consultants

One of the anomalies of the 2003 consultant contract is that consultants with a longer period of service get different rates of pay, even when doing the same role. This is due to the tiered salary scale.

This discriminates against younger consultants and also contributes to the gender pay gap as there is a higher proportion of women at the lower end of the consultant salary scale.

For extra contractual work, it is right to pay consultants at the same rate of pay regardless of their length of service. It would potentially be discriminatory to offer younger consultants in particular a rate of pay that is lower than older consultants for such work.

The rate should not be lower than the existing cost of a PA

Extra-contractual work is discretionary and it is appropriate that the overtime rate is paid at a higher rate than the trust pays for work within a standard contract of employment.

This should be the case for all consultants and no consultant should be expected to do overtime at a rate of pay that is at a lower rate for their employer than that paid under their standard contract.

We have calculated the cost of a PA to your employer under the 2003 contract, taking into
account pensionable CEAs (clinical excellence awards), annual and study leave, and other employer-borne costs.

This has been calculated at a minimum of £422 per PA. We believe this should be the minimum standard cost of a PA for extra contractual work for all consultants. 

PA length should vary to reflect the nature and instensity of the work

For high intensity extra-contractual work such as that required to support the pandemic, it is essential that the number of hours that constitute a PA are reduced in a
similar manner to those for contracted PAs that are subject to a temporary change in job plan.

Not only does this maintain a consistent approach but again reduces the risk of burnout.

SPA (supporting professional activities) time

SPA time is essential in ensuring that consultants continue to deliver high quality clinical care. SPA time has never been more important than it is in the current fast-moving climate.

These new treatments and procedures need to be rapidly learnt by other consultants. You will need sufficient time for this to happen – SPA time.

It is essential that SPA time continues to be recognised and remunerated. Given the pressures in these difficult times, it is appropriate that SPA time is reprioritised towards supporting the COVID-19 pandemic but it should not be suspended or converted to direct clinical care sessions.

Suspending SPA time will vastly limit the ability for consultants to further reconfigure services to treat as many patients as possible. Very high proportions of direct clinical care sessions within job plans, particularly when these are at very high intensity, are also likely to lead to burnout.

If SPA time is COVID-19-related, then other commitments that would normally be undertaken in SPA time should be removed with no expectation for these to be repaid at a later date. 

Undertaking clinical activity within SPA time

SPA time should continue to be supported, but in an emergency it may be necessary to undertake direct clinical care within a SPA or other sessions (administration time, for example).

We are aware that some trusts have refused to remunerate doctors on such occasions as they claim the doctor is already being paid and 'cannot be paid twice'.

This is not the case as in the vast majority of instances, the SPA or administration time has
not been cancelled by the trust and they still expect that the work be completed.

In reality, this work is time shifted to outside of your normal working hours and it is therefore appropriate to be paid for this time at the rates above. Or, you could have a subsequent direct clinical care session cancelled to allow time for the displaced work to be completed.

If it becomes a regular occurrence that you are being asked to perform direct clinical care in SPA
time, then the trust should make appropriate changes to the service to prevent this happening in the future.

Annual, study and professional leave

Our response to the second spike may well be much longer term than the first wave. Appropriate rest and annual leave must be part of any working patterns and consultants must be allowed to take planned leave.

It is not acceptable to have to work for extended periods without being able to take proper leave, as was the case for many in the first peak, and as we know has proven to be unsustainable.

Employers cancelling leave

Whilst employers can lawfully cancel pre-booked days of annual leave, they have to act reasonably. For example, if it is an important family event then it might not be lawful to cancel your holiday.

You have a good argument for asking for reimbursement of any reasonable losses you suffer (unless already covered by insurance).

Your employer is legally obliged to offer at least one day notice for each day of leave to be cancelled. In the first instance, employers should do this on a voluntary basis rather than enforcing cancellations.

Carrying over 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 for carrying over of leave to the next leave year.

However:

  • if employees cannot take bank holidays off due to COVID-19, they should use the
    annual leave at a later date in their leave year
  • if this is not possible, bank holidays can be included in the 20 days’ annual leave that
    can be carried over. This holiday can be taken at any time over a two-year period.

As study and professional leave operate across a three-year cycle, they can be carried over such that you should not lose your entitlement because of the pandemic.

Agreed local study leave budgets should similarly roll over.

Covering for an absent colleague

There needs to be clear and understood limits to the level of cover that any individual can be expected to provide.

There is generally an expectation that individuals will cooperate with their employer to provide cover for colleagues at an equivalent level where they are sufficiently competent to do so and, crucially, where providing such cover is 'practicable'.

There is no strict definition of 'practicable' but in general terms it means something close to 'able to be done' or 'able to be put into practice'.

Whether something is practicable or not in a given situation will depend on the circumstances, including your personal circumstances.

An example

If, for example, you have caring responsibilities for family members, you may be justified in saying that it is not practicable for you to provide unforeseen, short notice cover that conflicts with these responsibilities.

Alternatively, if providing the cover requested would compromise patient care or safety because it's above your competency, then it would not be practicable to provide the cover.

Coming to an agreement with your employer

Unless there are local or national arrangements already in place, you are encouraged to come to agreement locally with your employer on:

  • what is deemed to be practicable
  • what the proposed cover entails
  • that the work is of a suitable nature to be covered by you
  • that the right clinical need has been prioritised in a situation where clinical personnel are limited in number.

In establishing suitability, due regard must be given to your duty to recognise and work within the limits of your professional competence, as well as your assessment of the likely impact on your wellbeing.

It may be necessary to agree to re-arrange other duties (eg cancelling a clinic) for you in the short term in order to provide adequate cover for the prioritised work.

Generally, it is only expected to cover absent colleagues for a short period eg up to 72 hours. This is allows internal cover to be provided where practicable to cover a weekend.

This additional activity should be remunerated in line with our recommended rates. Beyond 72 hours, if colleagues remain absent then it is the trust’s responsibility to arrange cover including locum cover.

Your contractual obligation

Consultants (including clinical academics) are only contractually obliged to provide cover for other consultants and associate specialists. There is no obligation for them to provide cover for junior colleagues and this is dealt with under any locally agreed ‘acting down’ policy.

Read the specific BMA guidance on consultant cover for colleagues.

Being asked to move specialty