Will I be expected to support trainees on the 2002 junior doctor contract during the implementation phase?
Yes. Although the guardian of safe working hours role is part of the 2016 TCS, and there are no contractual requirements for the guardian to support trainees on any other contract, the BMA believes that as part of the guardian’s general responsibility to oversee the safe working hours of trainees at their workplace, they can and should, where possible and appropriate, support trainees on the 2002 TCS.
There will be a potentially lengthy period during which some trainees will be working on the 2016 terms and conditions while others will remain on the 2002 terms and conditions, during the phased transitional year but also beyond this, as trainees on long-term lead employer contracts under the 2002 terms will have the right to remain on these contracts until they expire (up to seven years or more).
Similarly some trainees will be working under the new terms but paid under the pay system of the 2002 TCS, as part of section 2 transitional pay protection.
Monitoring and re-banding will not be used under these new TCS, and doctors continuing to be paid under the 2002 TCS payscale (as part of section 2 transitional pay protection) will otherwise be subject to all other terms and provisions of the 2016 TCS.
If such a doctor experiences significant and/or regular variation between their day-to-day work and their work schedule, they should submit an exception report and follow the process as set out in the new contract.
A work schedule review should be used to determine whether or not the banding supplement being paid is correct for the doctor’s working pattern, and Annex B can be used to pay a different banding supplement to the individual doctor if necessary. Any disagreement between the doctor and their supervisor will be overseen by the guardian of safe working hours as set out in schedule 6.
For those trainees remaining working under the 2002 TCS, the terms of that contract must be met in full – i.e. monitoring must continue to take place with differences between actual working patterns and the rota addressed through re-banding where necessary. This process will continue completely as normal, but ideally with the oversight of the new guardian of safe working to assist in arbitrating any disputes between trainees and their employer.
Will I be expected to support trainees who are not on an NHS contract, such as academic trainees?
Yes. While there are no specific provisions which require a guardian to support those not on an NHS contract, we would strongly encourage guardians to consider and robustly represent the interests of trainees not on a substantive NHS contract but who are working in their organisation or an organisation for they are responsible.
A guardian will not be able to enforce a change to their work schedule, as they would for a trainee on an NHS contract, but where safe-working concerns are raised we would still expect a guardian to highlight these to the employer and recommend appropriate changes.
The guardian should also include feedback on safe trainee working issues for the whole trust, including those experienced by trainees not on an NHS contract, in their regular reports to the board.
Regarding academic trainees it is critical, both for NHS service provision and for the future of medical research, that they be afforded the same level of protection as their NHS colleagues. Without this, there is considerable risk that trainees on integrated academic training pathways would be used to plug gaps in rotas, regardless of the impact on their research and the rest of their working lives.
The NHS has as much ‘ownership’ of these trainees as their academic partners and it is vital that they are not seen as an easy fix to workforce problems because they are on a different contract to their colleagues.
How will the guardian role apply to public health trainees?
The BMA has engaged with PHE (Public Health England) to explore how the guardian role can be effectively implemented within a public health employment context.
The vast majority of public health trainees have a relationship with PHE as their host employer for on-call work and all public health trainees in England pass through PHE during in their training. PHE has, therefore, agreed to appoint a guardian to have oversight of junior doctors working under a substantive or honorary PHE contract.
Concerns remain about those trainees working for or at employers with relatively small numbers of trainees such as local authorities, charities and non-governmental organisations.
The BMA is seeking clarification on how these junior doctors will be covered by the guardian arrangements. The contract states that where a host employer employs fewer than 10 trainees, the host employer must contract a neighbouring NHS trust to take on this role for their trainees. The BMA has suggested that PHE consider undertaking the guardian role for smaller organisations employing or hosting public health trainees.
Should trust grade doctors have access to the guardian of safe working hours?
This should be agreed locally. Contractually, only trainees employed under the 2016 terms and conditions of service are required to have access to the guardian.
However, the BMA argues that in order to fulfill their safe working obligations, guardians must have oversight of the working hours of all trainees – and those who share a rota with trainees - within their organisation(s).
We would of course strongly encourage guardians to consider and robustly represent the interests of these groups even if they are not on the 2016 juniors’ contract.
When developing terms and conditions of service for trust grade doctors, employers and guardians may also wish to agree to incorporate a role for the guardian that covers these doctors. This should be agreed locally through the LNC, taking into consideration any additional time or support that may need to be allocated to the guardian.
The guardian should also include feedback on safe working issues for the whole trust, including those experienced by trust grade doctors sharing a rota with trainees, in their regular reports to the board.