The new 2016 contract includes restrictions on the way junior doctors working under these terms and conditions of service (TCS), can do locum work in their spare time.
The new rules
Schedule 3 paragraphs 43-44
- Where a doctor intends to undertake hours of paid work as a locum, additional to the hours set out in the work schedule, the doctor must initially offer such additional hours of work exclusively to the service of the NHS via an NHS staff bank.
- The requirement to offer such service is limited to work commensurate with the grade and competencies of the doctor rather than work at a lower grade than the doctor currently employed to work at. The doctor must inform their employer or host organisation of their intention to undertake additional hours of locum work.
- The doctor can carry out additional activity over and above the standard commitment set out in the doctor's work schedule up to a maximum average of 48 hours per week (or up to 56 hours per week if the doctor has opted out of the WTR). Rates of payment for such work are set out in Annex A.
- The employer will agree at the JLNC local processes for the doctor to inform an NHS staff bank of their intention to carry out such work.
No obligation for juniors
There is no obligation for juniors to do locum work, or to opt out of the Working Time Regulations to increase the spare hours they have for such work. Even if a WTR opt-out form is presented for them to sign as part of routine required paperwork at the start of the job, they can’t legally be required to sign it and it remains an individual choice.
However, if they do choose to do locum work, they must offer their hours to the service of the NHS first via an NHS staff bank.
If the doctor offers hours of locum work to the staff bank but there is no suitable work available, they are then be released from the terms of schedule 3 paragraph 43 and given permission to find locum shifts elsewhere (for example, through an agency).
Juniors can control their own free time
This rule must not be used as an excuse to keep junior doctors on a permanent retainer, remaining available just in case work comes up in the NHS staff bank at short notice. It is entirely inappropriate for an employer to implement this clause by making their own assessment of a junior doctor’s spare capacity and requiring them to do locum shifts at times that suit their staff bank.
All this clause requires is that juniors need to ask a given NHS staff bank whether they need trainees at their grade for a specific shift at a certain time, and if they are not needed for this particular shift the junior can work it elsewhere. If they offer their locum hours, they must be informed whether or not there is work for them within a reasonable time frame.
Junior doctors have the right to use their own free time as they choose, and as long as they are within safe working hours limits this includes the right to do locum work. Even where shifts are offered to them, juniors are free to decline, and making an enquiry about the availability of shifts at the staff bank does not constitute a binding agreement to work those shifts.
Work must be suitable
For work to be suitable it must be at the grade and competency level of the doctor – so if the only locum work available through the staff bank would involve the doctor acting down, they do not have to accept this and can be free to locum elsewhere.
Work not covered by the requirements of this clause includes private professional or fee paying work, volunteer work such as for St John’s ambulance, providing medical services at a sport or leisure event or any non-medical work, whether paid or voluntary.
Benefits for junior doctors
Locum work can have many benefits for junior doctors. This type of work can offer flexibility and better work life balance for doctors with commitments outside of work such as caring responsibilities, or those studying for exams.
It can allow for juniors to do some of their work closer to home if their substantive post is in a hospital a long distance away, and for juniors to supplement their income to help pay off often substantial student debts. These shifts also provide variety and the valuable experience of working in multiple different worksites and using different systems.
It is therefore vital that this new rule is not used to inadvertently restrict the ability for juniors to locum - especially at a time of pressure in the NHS when locums can be invaluable in filling rota gaps. You may reasonably be asked at the start of a placement whether you want to join your employer’s staff bank register and if you intend to locum at all, but you can always revisit this decision throughout your placement and change your mind at any time.
Negotiating arrangements for this locally
1. LNCs should take the lead in advocating for what they believe is a practical and fair protocol and timetable for the arrangements for this new rule locally. The contract specifies that the arrangements must be agreed with the LNC, so you do not have to accept an arrangement that is unsatisfactory.
2. You may wish to involve the local junior doctor forums in this process, if these have been developed already. It is important that the new arrangements have buy-in from the doctors who are going to be using them.
3. All employers and regions are different, and it is not useful to have one centrally prescribed process that is recommended universally – this is an opportunity to negotiate the best deal possible in your particular area. Ask local junior doctors what they want and how they want this to work for them, and use this as the basis for your proposal.
4. It is the BMA’s position that a doctor should be able to decide to do locum shifts with varying degrees of notice, and have the option to offer their availability for given shifts months, weeks, days or hours in advance according to their availability. The timeframe for receiving a response would understandably reduce the closer the shift in question became, but at a minimum we think a doctor should be able to receive a response within 24 hours or one working day. If availability for a shift is offered with 7 days’ notice or less the response should be at least the same working day.
If it is possible to check the rota and establish whether there is a shift to fill, there should be no impediment to telling the doctor whether they are needed within a maximum of one day, regardless of how far in advance the availability is offered. At a minimum, the BMA would define a reasonable timeframe within which juniors must be informed whether or not they are required by the local NHS staff bank as 24 hours, if not less depending on when the shifts are offered for.
Often trust bank offices operate from 08:00 – 17:00 Monday-Friday, so an example protocol could be to require that if a junior offers locum hours no later than midday on any given day to undertake work that evening or the next day (or within the next two or three days if it is a Friday) the trust must respond by 17:00 the same day.
5. It is also important to ensure the process for offering locum hours is simple and easy to use for busy doctors – ensure the process agreed allows for quick submission and response, for example an electronic process (either by email or using existing trust software programs) is likely to be preferable to written forms, and text message is likely to be preferable to a phone call. If trusts are only able to respond within business hours or similar, there should be a clause allowing for a lack of response within a certain time to be assumed to be clearance to locum elsewhere.
6. The response from the employer must be clear and easy to understand – if the junior doctor is required by the staff bank, the response should state clearly when they are required and for how long, so the doctor is clear about the fact that they can use their remaining free hours as they wish outside of the staff bank. Similarly if a junior is not required this must be explicitly confirmed so that they can confidently offer their hours elsewhere without being worried about breaching their contract.
7. It may be useful for the policy to include provisions where either an employer or a doctor has to cancel a booked locum shift, with an agreed notice period for cancellation and possible penalties for trusts that cancel locums that juniors had been booked in for via the staff bank. At a minimum there should be a provision to immediately release a junior from the locum clause if the staff bank shift they had committed to was cancelled.
What if my LNC are still in the process of negotiating a local policy for this clause, does it not apply to me?
The clause still applies regardless of whether a process has been agreed if you are employed under the 2016 TCS. In the absence of an agreed policy, it is up to you to act reasonably within the requirements of the clause, and this BMA guidance sets out our position on what is a reasonable interpretation of this clause.
Does this clause mean I can only do locums at my usual place of work?
No, all it requires is that you first offer shifts to an NHS staff bank – this could be the one at your workplace, or one elsewhere, it is up to you. If you offer your availability for a shift at a different trust to your own, it is the local policy for this clause in place there that should apply, not the one at your own trust.
Does this clause mean I can’t accept a higher rate of pay than the national locum rate for my shifts through the staff bank?
No, not if it is offered to you. If you enquire with a staff bank about shift availability at a given time, and they inform you that you would be accepted for a shift at that time at the national locum rate, you are free to decline it and not do any locum shift at that time. You are free to ask for a higher rate, and if the employer offers it you can accept it. What you cannot do is decline the shift offered by the staff bank and then go on to do a shift at the same time for a higher rate via an agency.
What if the staff bank only requires me for part of my available time?
If you offer your availability for a certain shift at a certain time and you are required by the staff bank for only part of this, you should be partially released from the clause to locum elsewhere during the time you are not required by the staff bank.
How does the clause work for GP trainees?
Where a junior spends part of their programme in a general practice setting, the logistics of the locum clause may be slightly different. This should be discussed as part of the agreement on how to enact this clause at the JLNC, taking into account local circumstances and input from trainees and employers within general practice. Generally GP trainees will not choose to undertake locum work in the practice setting, and the new locum clause does not in any way require GP trainees to undertake locum work of any kind, or for them to work in the practice setting rather than a hospital setting. If a GP trainee wishes to do locum shifts in a hospital setting, they must offer their locum hours to the NHS staff bank as per the standard locally agreed procedure, but are under no obligation to offer hours to the host practice first.
What to do if you experience problems
The BMA has produced an advice note to clarify concerns that have been raised regarding the correct implementation of the new clause relating to locum work in the 2016 terms and conditions of service.
The clause (schedule 3 paragraphs 43-44) requires that trainees initially offer any spare hours they wish to locum to an NHS staff bank, and can be released to locum elsewhere (such as via an agency) only if they are informed by the staff bank that they are not needed. The TCS stipulates that a process for implementing this new rule must be agreed locally with the JLNC.
This advice note clarifies in detail:
- No doctor is obliged to undertake locum work – the clause only applies if a doctor has chosen to do additional work as a locum, and the clause cannot be implemented in a way that requires doctors to do extra locum work that they would not otherwise choose to.
- It is not acceptable for an employing organisation to impose a policy for the implementation of this clause, the policy must be agreed with the JLNC.
- It is entirely inappropriate for employers to threaten junior doctors with referral to the GMC for potentially breaching this clause in the TCS, and the BMA will support fully any junior doctor member who is challenged in this way.
- No one is obliged to offer any spare hours to their own employing trust first, they can offer this to any NHS staff bank. If that NHS staff bank does not require them, they are free to work any locum shift at any agreed rate.
Read the advice note
If you have any concerns about the implementation of the new locum clause please contact the BMA or telephone 0300 123 1233 .