Contract Junior doctor England

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Exception reporting - outcomes

There are no restrictions in the TCS around the submitting of exception reports.

You do not need to discuss the issue you wish to report in advance with anyone, or seek approval for submitting it – if you believe there is a reason for you to exception report, submit it and then a discussion can be had as to whether or not any action is required.

Whatever the outcome, the contract requires that it is communicated to you clearly, electronically and in writing.

 

Read our FAQs on exception reporting

 

What are the possible outcomes?

  • No action to be taken

    The first step your educational supervisor should take when you submit an exception report to them electronically is to have a discussion with you to discuss what should happen next. If you feel action is required you can voice this in your discussion, and if your educational supervisor disagrees the guardian can step in – they will have been copied in to the original exception report.

    It may be however that you both agree no immediate action is required – if you were required to stay late at work for a very short period of time and there was a clear, one-off reason for this, for example.

    In this type of situation it is still important to exception report. While the exception may require no immediate action, if it becomes clear over time that this is a persistent problem that may require a work schedule review, or if the small overruns add up to the extent that you breach the average working hour limits, it is important to have this prior record of exception reports to demonstrate the nature of the problem.

     

  • Impact on pay

    The new TCS allows for exception reporting to be used as a mechanism to claim compensation when you are required to work longer hours than planned. Your pay is worked out based on your work schedule, which includes your basic salary plus all other elements of pay that may apply – for example the 37% enhancement for night work, a frequency-based allowance for weekends, and an availability allowance for non-resident on-call.

    If you are required to work beyond the hours scheduled in your work schedule you should therefore be compensated for this in some way as junior doctors should be supported to work within safe limits and not expected to do unpaid overtime.Pay for the extra work you are required to do also acts as a disincentive to your employer from allowing you to become overworked. The aim of pay for all work done as a principle is partly to recognise the often frequent overtime juniors do in order to look after their patients and ensure they are fairly paid for it, but also to encourage a safer working culture by attaching a financial cost to employers who overwork their staff.

    If you wish to claim pay when you are required to do extra work, you should submit your exception report within 7 days. Ultimately any claim for pay needs to be authorised by your manager, in practice this is whichever person who would be in the position to confirm that you were required to work extra time for the needs of the service (the default assumption).

    It is useful if your manager can authorise the pay in advance, by confirming in writing that you are being required to do extra work and that you should therefore be paid. It isn’t essential however, and the contract states clearly that authorisation can be given afterwards by filing an exception report.

    The pay will be at the prevailing rate for the time you did the work, so your basic pay with any relevant uplifts applied (if the work takes place at night for example).

     

  • Breaches incurring a financial penalty

    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.


    Example

    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.

     

  • Time off in lieu

    If you are overworked to the extent that you risk being too fatigued to work safely, you must also be able to access compensation in the form of time off in lieu where appropriate.

    If an extension of your working hours threatens to take you over the upper safe working hour limits, then time off in lieu may be the best option – but you can discuss this with your supervisor when you exception report.

    If you’ve breached the rest requirements and need to take time off in lieu, this must be taken within 24 hours unless you declare yourself safe for work and your manager agrees, in which case it can be accrued if you prefer.

    Time off in lieu as a result of working outside the hours of your work schedule, that does not also breach rest requirements, can be accrued or ‘banked’ for up to three months. Where time off in lieu can’t be taken within the relevant time limit, you should be paid.

    The details for any time off in lieu you take should be stated clearly in the electronic written communication from your educational supervisor following the discussion about your exception report, copied to the guardian. Your supervisor should agree with you a time and date for the time off to be taken, and not leave it up to you to find the time. The written outcome should also be clear about the timeframe within which the time off must be taken, and clarify that payment will be made if the time off can’t be taken.

     

  • Work schedule review

    If shift overruns are frequent and persistent, it may be necessary to undertake a work schedule review, changing your schedule to make the overrun part of your planned hours and adjusting your salary going forward accordingly.

    A review can be a result of you submitting an exception report, or it can just be requested by either you, your supervisor, your manager or the guardian of safe working hours at any time. This is a conversation between you and your educational supervisor about whether your work schedule is fit for purpose, and may prompt one or more of the following outcomes:

    • No change to the work schedule is required, but compensation in the form of pay or time off in lieu is required for one or more individual breaches of the work schedule
    • Prospective changes are made to the work schedule so that going forward from the review, your hours and/or training commitments are changed with a corresponding adjustment of your pay
    • Organisational changes are needed, such as a review of the timing of ward rounds, handovers and clinics

    If such organisational changes are needed, this may take a while to happen – so in the meantime, temporary alternative arrangements should be made where necessary, such as an amendment to your pay.

    The outcome of the review must be communicated in writing to you. If you’re not happy with the outcome, there is a process in place to follow this up:

    1. Formally request a level 2 work review. You need to request this within 14 days of being notified of the outcome of your first review. You’ll need to explain why you’re in disagreement and the outcome you want.
    2. The level 2 review should take place within 21 working days after the receipt of your written request. This is a meeting between you, your educational supervisor, a service representative and someone nominated by either the guardian (if it is a safe working concern) or the DME (if it is a training concern). If you’re on an integrated academic training pathway, your academic supervisor should also be involved.
    3. The discussion will revisit the options considered in the first work review (outlined above) and conclude either to uphold the first decision, or to put in place one of the alternative options.
    4. If you’re still not happy with this outcome, you can request a final stage work review within 14 days of being notified of this decision. Again you should explain the nature of the disagreement and the outcome you want.
    5. The final stage work review will be a formal hearing under the final stage of your employer’s local grievance procedure – your local BMA representative or support staff can explain this to you – and will take place in accordance with the Acas Code of Practice on Discipline and Grievance in the workplace. If you’re appealing a decision taken by your guardian, the panel must include a representative from the BMA or other recognised trade union, which must be provided within one calendar month.
    6. The decision of this panel is communicated in writing, is copied to the guardian, and is final.

    At any point in this process, if you or your supervisor identifies any issues or concerns that could affect your colleagues working the same rota, it might be necessary to review other individuals’ work schedules. In this case the reviews should be carried out jointly, and if needed the process above can be followed to agree changes to all affected doctors working that rota.

     

  • Calculating missed breaks and average weekly hours

    Whenever 25% of breaks are missed across a four week period, the guardian will levy a fine. This is twice the hourly rate for the time that you should have taken the breaks. The average weekly maximum of 48 hours is calculated across a reference period which is either the length of your rota cycle, length of your placement, or 26 weeks – whichever of these is shorter. This maximum limit doesn’t apply to doctors who have opted out of the WTR; for these doctors the maximum is 56 hours.

    You should copy the guardian into all exception reports relating to safe working hours. If these result in any of the breaches raised, the guardian will levy a fine. As breaches regarding missed breaks and average weekly hours are recorded over a longer period of time, they may not become evident immediately. It’s therefore imperative that you flag up all additional hours and missed breaks as and when they happen, so that the guardian is able to monitor when these trigger a breach.

    Junior doctors may find themselves in situations where they think a missed break is a ‘one off’ and decide not to report it, without realising that there is a pattern until weeks later. Recording all missed breaks and additional hours worked as soon as they happen makes it easier to evidence and act on these issues when they trigger a breach.