The 2016 terms and conditions of service for junior doctors includes a clause in schedule 3 which relates to doctors' ability to undertake locum work:
43. 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 / 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.
44. The employer will agree with the JLNC local processes for the doctor to inform an NHS staff bank of their intention to carry out such work.
This does not mean that a doctor is ever obliged to undertake locum work in their spare time - only that if they do wish to, they should offer it to an NHS staff bank first. This does not restrict them to undertaking shifts at their usual place of work, and they can accept shifts offered anywhere through an NHS staff bank.
Intention of this clause clarified
We are aware that since this clause was introduced there has been widespread misunderstanding as to the original intention of this clause.
NHS Employers have published guidance on their website in the form of an FAQ for employers to explain that the requirement is to offer specific hours of work of the doctor's choosing, as opposed to general spare capacity.
It is not correct for the employer to pre-assess a doctor's spare capacity based on when they are not rostered to work. Just because a doctor is not rostered to work does not mean that the time is 'spare' - they may have social or family commitments in that time.
It is up to doctors to self-define their spare capacity and offer their availability at the times that suit them.
Read the NHS Employers FAQs
Local process must be agreed
Ideally, agreement will be reached between the employing organisation and the JLNC on a local process for enacting this clause, as per paragraph 44. This policy would need to include specifics on things like the method doctors are to use to offer their spare locum hours and the timeframe in which they can expect a response before automatically becoming able to offer time elsewhere.
In the case that agreement can’t be reached on such a policy, the employing organisation and JLNC must, in accordance with the contract, continue discussions until a policy can be agreed. It is not acceptable for the employing organisation to unilaterally introduce a policy that has not been formally agreed at the JLNC, if they impose such a policy it is not valid in accordance with this clause. If your employer attempts to do this, please report this to the BMA and it will be raised at a national level.
Where a process is not agreed
In the absence of an agreed policy, paragraph 43 is still applicable to junior doctors who are working under these TCS. Therefore it is imperative that if these TCS are introduced as the only available contractual option for junior doctors employed in a trust, agreement is reached on a local process as soon as possible.
If no process has been agreed it will be up to individual junior doctors to act reasonably in deciding how they will go about offering their time to the staff bank and the timeframes for doing this – while an agreed process is not in place the employer cannot object to this.
See our guidance on negotiating this process locally and how to deal with the absence of an agreed policy
This clause implies mutual responsibility on the part of the employing organisation and the junior doctor – a junior doctor is bound by paragraph 43, but the employer is similarly bound by paragraph 44 and the requirement to agree a process.
It is entirely inappropriate for employing organisations to threaten junior doctors with referral to the GMC for breaching this clause of the contract, especially when there is no equivalent sanction for employers who refuse to engage meaningfully in discussions with the JLNC on a local policy and/or breach this clause of the contract by imposing a process without agreement. The GMC has confirmed that a breach of a local employment policy should be resolved at a local level without GMC involvement – unless the actions of a doctor involve a serious breach of its guidance which either risks the safety of patients or confidence in the profession.
Any guidance issued by employing organisations on the locum clause which indicates that they may refer doctors to the GMC for breaching this clause is therefore invalid and the BMA will support any junior doctor member who is challenged by their employer in this regard, including but not limited to notifying the employer directly of the above advice that GMC referral is inappropriate.
If the employer goes on to make this threat again, the BMA will seek further serious legal action where trusts or individuals fail to act appropriately and will not tolerate the blackmail of our members.
Read our letter to University Hospital Birmingham NHS Foundation Trust's Chief executive
If you have any concerns about the implementation of the new locum clause please contact the BMA or telephone 0300 123 1233.