Although most exception reports will result in either payment for the additional hours worked or TOIL, there are circumstances where financial penalties will be levied. The following situations will automatically result in a financial penalty:
- You work more than 48 hours average per week
- You work more than 72 hours in any seven consecutive days
- Your rest between shifts is reduced to less than eight hours
- You miss breaks on 25% of occasions (across a four-week reference period)
These fines are automatic – it is the responsibility of the guardian to review all exception reports copied to them in order to identify if any of the above breaches have occurred. In such circumstances, TOIL cannot be negotiated as a replacement for the fine.
It’s important to note that this fine applies to actual hours worked, meaning that if you are rostered to work 72 hours over seven consecutive days, but your actual hours worked exceed this, the fine will apply.
If the fine applies to missed breaks, the amount will be twice the hourly rate for the time the break should have been taken, and you will not be paid – this is because junior doctors already received paid breaks and under this TCS you cannot be paid twice for the same period of time. In all other circumstances, the fine will be four times the hourly rate and will be distributed as illustrated below:
||Total financial penalty
||Hourly penalty rate paid to the doctor
||Hourly penalty rate paid to the guardian
|Additional hours worked attract a basic rate
||The total value of the fine is four times the basic hourly rate
||x1.5 of the basic hourly locum rate
||The remaining money (equalling the total value of the fine minus the rate paid to the doctor)
|Additional hours worked attract an enhanced (night) rate
||The total value of the fine is four times the enhanced hourly rate
||x1.5 of the enhanced hourly locum rate
|The remaining money (equalling the total value of the fine minus the rate paid to the doctor)
The locum rate is set out in the pay and conditions circular, which is available on the NHS Employers website.
Michelle is an FY2 and is rostered to work 72 hours over seven consecutive days, finishing her final shift at 9pm on Wednesday. Michelle is required to stay behind and work an additional hour in order to ensure safe handover, thereby finishing at 10pm and working 73 hours over seven consecutive days. Michelle files an exception report for this additional hour, and sends this to her educational supervisor with the guardian copied in.
The educational supervisor reviews this report and the guardian notices that the additional hour worked causes a breach of the 72 hour maximum limit. As the breach took place during an hour attracting an enhanced rate of pay, the guardian fines the trust an amount equal to four times the enhanced hourly rate. Michelle is paid for the additional hour at the rate of 1.5 times the enhanced hourly locum rate. The remaining money is paid by the trust to the guardian, who decides how this money is spent in collaboration with the junior doctors’ forum.
For more on what these fines can and cannot be spent on, see our guidance for guardians.