Do I qualify for transitional pay protection, and what type?
Schedule 14 of the TCS deals with the temporary transitional pay protection arrangements which are aimed at ensuring no current junior doctor receives a pay cut as a result of the new contract. The arrangements are complex, so if you are unsure how this may affect you we would encourage you to use our interactive pay protection tool
If you are still not sure exactly how the arrangements will affect you, please email us with your individual circumstances to [email protected] and we can advise you.
How will my pay be protected when I transition to the new contract?
The new contractual arrangements include an initial period of pay protection for some existing doctors. This is a complex area, which is set out in Schedule 14 of the final terms and conditions and we would encourage you to read this in detail. NHS Employers have also now clarified additional detail around the pay protection arrangements in FAQs on their website.
The principle is that junior doctors employed on the current contract will have their pay protected to ensure they do not see any drop in pay as a result of the introduction of the new contract. This includes new F1s, who will have started on the 2002 TCS in August before moving to the new one in December.
There are two categories for pay protection - one covering doctors in Foundation, core, GP and the initial stages of run-through training programmes, the other covering those already in higher training programmes and the later stages of run-though training (ST3 and above). The first category will have their pay protected against a 'cash floor', based on the basic salary the doctor was earning on the day before they transitioned to the new contract and the banding for the rota they were working the day before transition, but the value of that banding supplement as at 31 October 2015.
For example, if you were working on a band 1A (50%) rota the day before transition, but that same rota had a different banding value of 1B (40%) on 31 October 2015, that previous banding percentage will apply. So your cash floor would be your basic pay on 6 December 2016, plus 40% of that basic pay. Not 50% of that basic pay, and not 40% of the basic pay that would have been earned in October 2015.
An exception has been made for unbanded F2 trainees transitioning onto the new contract in April 2017. For these trainees, their cash floor will be uplifted to the equivalent of a 1B (40%) band.
The second category, doctors already at ST3 or above on a run-through training programme on 2 August 2016 above, will have their pay protected by continuing to be paid under the old pay system, including increments and banding (but not band 3). For the purposes of their pay only, the old definitions of 'plain' and 'premium' time will apply. The final terms and conditions include detailed instructions as to how the old pay system will work with the new contractual terms, including how these doctors can make use of the new exception reporting system under the guardian of safe working.
Pay will be protected either until the doctor exits the training programme, or until four years of continuous employment have elapsed (pro rata for those LTFT or taking time out) or until August 2022, whichever is sooner.
There are various provisions to ensure fairness in the calculation of the cash floor and the length of protection. Those taking time out of training for maternity leave, for example, will have this time out disregarded for the purposes of their four years of continuous employment. LTFT trainees will also have their coverage extended pro rata - so someone working on an 80% basis would have their four year period extended by a year. Doctors who are out of training for maternity leave, for example, or on an approved out of programme (OOP), at the time they would transition to the new contract, will have their pay protected at the incremental pay point that they might otherwise have reached had they not been absent.
But the 'cash floor' doesn't protect my pay against what I would have earned had I continued on the old contract, why is the amount calculated only once?
The principle is that no current junior doctor will see a drop in pay compared to what they currently earn, not that your potential future earnings are protected. The cash floor is calculated once and your pay cannot drop below this point, but it will not be calculated again. Your pay is protected against the cash floor until such time as your pay on the new contract would be greater, at which point pay protection stops and you are just paid under the new contract as normal.
Similarly, if you qualify for section 2 protection and earn less under the old contract pay system than you would under the new contract, you still get paid under the old contract i.e. the lower amount.
How is it fair that the cash floor for foundation trainees depends on what order they did their banded and unbanded placements in?
We are aware of this problem and this has been a key priority in discussions with NHS Employers and Department of Health over recent months. We pushed as hard as we could for a national solution to this problem, however NHS Employers delayed the process to the point that it became too late to make the change in time for the F1 transition in December.
One option we proposed was to average the banding an individual receives across the three placements in the year and use that as the cash floor, rather than the banding for the rota they happened to work just before transition. It would mean those who did their banded post before transition would lose a small amount, however they would know they were being paid the same as their colleagues, who were doing the same three rotations. Those who started on unbanded jobs would potentially gain significantly, and this would reduce the large discrepancies we are seeing at present.
We have managed to secure agreement from NHS Employers to authorise locally negotiated solutions to the problem where possible for F1s. Our locally based Industrial Relations Officers are working hard to agree improvements on this issue, for example in some areas trusts have agreed to increase the cash floors of those trainees who were unbanded pre-transition to make their cash floors match their banded peers’.
For unbanded F2 trainees transitioning onto the new contract in April 2017, we have managed to secure a national change which will result in their banding being uplifted to 1B (40%) prior to transition. Please refer to the below questions for further detail on this change.
What if I return to training following a break after October 2016, but before my grade and specialty is due to transition to the new terms?
In this case you would be entering training after the new contract is in use. However you would have to start working under the terms of the 2002 TCS as your colleagues in your grade and specialty would still be working under these terms and the corresponding working patterns. You will not be eligible for pay protection however as you would not meet the eligibility terms set out in schedule 14. So you would be offered the existing 2002 terms and conditions of service until such time as you are due to transition to the new contract.
Where it would make more practical sense for a doctor to be employed on the new contract earlier than their ACAS date (for example, a doctor will be working on a rota with other doctors already on the new contract), then the employer and the doctor may agree that the doctor will start work on the new contract before their ACAS date.
If someone is an ST2 in August 2016 but an ST3 on the date when their grade and specialty is due to transition, what type of pay protection do they get?
You would be entitled to section 1 pay protection (i.e. the cash floor method). To be entitled to section 2 pay protection you would have needed to be already at ST3 or above, or in higher training, on 2 August 2016.
If I am already in one of the hard to fill specialties when transitioning onto the new contract will I get the full £20,000 amount or just a proportion of it?
The annual value of the FPP for hard to fill specialties will be calculated as the full value divided by the full number of years of the training programme. E.g. if the doctor has four years remaining of a six year programme, their will receive 4/6 of the £20,000, spread evenly over their remaining four years.
Doctors already in the later stages of training who fall under Schedule 14 paragraphs 23-37 (i.e. "Section 2" pay protection) will not qualify for flexible pay premia. This is because they will continue to be paid on their existing pay scale, including annual increments, and be paid a banding supplement to recognise any unsocial hours working and to protect their current pay expectations. As these doctors will not be paid under Schedule 2 of the 2016 TCS, they will not receive any of the payments or allowances outlined in Schedule 2.
What happens to those who have taken time out of training to complete a PhD, for example?
Doctors absent from training at the point of transition for approved out of programme (OOP) purposes who return to training prior to 3 August 2022 shall have their pay protected so that they would receive the incremental pay point that they might otherwise have reached had they not been absent; plus the value of the banding supplement under the 2002 TCS as at 31 October 2015 for the rota on which the doctor would have been working on had they not been absent, up to a maximum banding supplement of 50 per cent (Band 1A) or, for those doctors who have opted out of the WTR, to a maximum of Band 2A (80 per cent).
Additionally, a flexible pay premium shall be payable to a doctor who has subsequently undertaken research toward a higher degree as part of an approved out of programme research experience (OOPR); and has returned to employment in a post on the same training programme having successfully completed a higher degree during that OOPR.
What happens if you are on maternity (or similar) leave when the contract comes in?
Doctors absent from training at the point of transition on maternity leave, paternity leave, adoption leave, shared parental leave or sick leave, or for approved out of programme (OOP) purposes who return to training prior to 3 August 2022 shall have their pay protected so that they receive the incremental pay point that the doctor might otherwise have reached had they not been absent plus the value of the banding supplement under the 2002 TCS as at 31 October 2015 for the rota on which the doctor would have been working had they not been absent, up to a maximum banding supplement of 50 per cent (Band 1A) or, for those doctors who have opted out of The Working Time Regulations 1998 (WTR) to a maximum of Band 2A (80 per cent).
If I'm not currently in a training programme, will I qualify for protection when I return after 3 August 2016?
No unfortunately not, the pay protection covers new F1 doctors in August and doctors in training on 2 August who either remain in that programme or progress directly to their next one. If for example you take a break between core and higher specialty programmes or between foundation and specialty training, you aren't eligible.
There are some exceptions:
- A doctor who has accepted a place in a training programme in a 2015 recruitment round, or earlier, and has agreed with Health Education England to defer the entry date at that time will qualify for pay protection when entering that programme on the agreed date.
- A doctor who has accepted a place on a training programme during a 2016 recruitment round (prior to 30 June) and has agreed with HEE a deferral of the start date will qualify for pay protection when entering that programme on the agreed date.
- A doctor who has accepted an appointment to start a period of research or organised leadership programme (e.g. the FMLM scheme) prior to 31 March 2016 without having secured a place on a GP or specialty training programme, and who would otherwise qualify for pay protection on return to training under the 2016 terms and conditions of service. To be eligible for pay protection in this circumstance, the doctor must enter a nationally recognised specialty training programme at the first available opportunity, in line with the national specialty training recruitment timetable, following the successful completion of that academic or leadership work. This provision will only be extended to those who have made the decision to take up such academic of leadership programme activity prior to 31 March 2016. Doctors should be asked to provide evidence of the date upon which they accepted this academic or leadership work to prove their eligibility for pay protection.
What happens if I am switching specialty around the time of transition?
It is important not to confuse the two types of pay protection in the contract - that outlined in schedule 14, a temporary schedule setting out the transitional arrangements, and that outlined in schedule 2, a permanent schedule setting out the rules around pay protection if you switch specialty or re-enter training from a career grade. It is the latter type of protection which includes the requirement that you must be returning to a shortage specialty (currently GP, psychiatry and emergency medicine).
If during the period of transition, you choose to switch training programmes, without a break in training of more than three months, subject to qualification periods, you will benefit from transitional Section One cash floor pay protection until the end of your transition period.
I'm in a career grade and I had planned to return to training this year, will I only get pay protection if I go into a shortage specialty?
Under the new contract, you will only receive pay protection of your career grade salary when you return to train in a shortage specialty (GP, psychiatry, emergency medicine). However an exception has been made for those who applied to return to training, in any specialty, before the terms of the new contract were first published on 31 March 2016.
Where doctors in the nationally recognised career grades have already successfully applied to re-enter training in the 2016 recruitment rounds, and they meet the eligibility criteria set out in schedule 2 paragraph 50, the pay protection outlined in paragraph 51 will apply irrespective of their training programme (except for re-entry to the foundation programme). The extension of this provision to doctors entering programmes in any training programme (except foundation programme) will only apply to those who applied in 2016 recruitment rounds as it will protect the pay expectations they had when making that application. Doctors who successfully applied for training in previous years who have deferred their entry to training will be covered under other transitional arrangements for pay protection.
I qualify for section two pay protection and will therefore be paid under the old contract, but I would earn more if I was paid under the new contract - can I choose to opt in fully to the new contract pay system?
No, you can only receive the form of pay protection you qualify for and can't choose a different type or to opt out of it. It is worth bearing in mind however that section 2 pay protection involves receiving all aspects of old contract pay, including automatic time based annual pay progression, which those being paid under the new contract will not receive.
I have previous NHS service but I'm re-entering training this year from a post that was not in a nationally recognised grade, do I get pay protection?
If you are going back into training after working as a trust grade or clinical fellow, for example, you would not automatically qualify for transitional pay protection or for pay protection when re-entering training, as outlined in schedule 2.
However, such doctors who applied to re-enter training prior to the publication of the 2016 TCS on 6 July 2016 and are due to commence that post before 10 February 2017 (unless deferral of entry has been agreed) will, by exception, also be considered for the pay protection arrangements outlined in Schedule 14.
The incremental point paid to that doctor after commencing that training programme under 2002 TCS shall be used for the determination of pay protection on transition to the 2016 contract. Where such doctors commence their training programme directly on the 2016 TCS, the 2002 terms shall be used to determine what the appropriate incremental point would have been on the day immediately prior to transition, had they already been in post.
How will the less-than-full-time (LTFT) flexible pay premium work?
If you are working LTFT and in receipt of ‘Section 1’ pay protection, you are entitled to a flexible pay premium provided that:
- you were working LTFT on 3 August 2016 or
- you were on maternity leave on 2 August 2016 and subsequently returned to training on an LTFT basis
The total amount is £1,500 per year and is fixed for all LTFT trainees, irrespective of the overall percentage you are working.This figure is divided by 12 and paid monthly on top of your basic salary, and is not pensionable. You do not need to apply for the premium which should be awarded automatically for all eligible LTFT trainees.
You should also ensure that it is reflected clearly in your payslip – for more on this please refer to the sample payslip.
This premium is awarded as part of the transitional arrangements outlined in Schedule 14 (paragraph 17), meaning that you will continue to receive it whilst you are working LTFT until your transitional pay protection period ends. Unlike the flexible pay premia set out in Schedule 2 of the TCS, this premium is intended solely for LTFT trainees and is therefore not paid pro-rata to your agreed proportion of full-time work.
The banding for my rota has changed since 31 October 2015. Does this mean that this is a new rota which did not exist on 31 October 2015 for the purposes of calculating my cash floor protection?
This depends on the extent to which the rota has changed. The 2016 TCS introduced new rest requirements, and so it's likely that minor amendments will need to be made so that your rota complies with these new arrangements.
If such minor changes are made as a result of the new hourly working limits and these result in a higher or lower band than the 31 October 2015 one, then this will not supersede the 31 October 2015 banding for the purposes of calculating your cash floor.
A rota which is otherwise different to the 31 October 2015 rota would be classed as one that didn't exist back then if, for example:
- The post didn't exist on 31 October 2015
- The rota underwent changes to unsocial hours after 31 October 2015, e.g. trainees were subsequently rostered to work nights when previously the rota included only plain time hours.
- The working pattern is different to the 31 October 2015 pattern, e.g. it now includes on-call working, an increase in the frequency of weekends worked, or the addition of cross-over shifts.
If the rota underwent such a change and was subsequently re-banded as a result, then it is that new banding value that should be used to calculate your cash floor.
This should also be the case if the banding which applied when you first began your placement was later changed prior to your transition. For example, if your rota included no unsocial hours in August 2016 but was later changed to include night shifts prior to your transition onto the 2016 contract, then it is the latter banding value that should be used to calculate your cash floor.