Please note: These FAQs are intended to be read in conjunction with the BMA/NHS Employers – Local Clinical Excellence Awards (LCEA) Joint FAQs. The Joint FAQs provide both employers and consultants with a shared understanding of the details of the agreement and its practical implications for consultants.
These BMA FAQs answer additional member-specific questions, including what it means if an individual’s employer has failed to run awards rounds in the past and if it fails to in the future, as well as answering questions relating to pensions.
The BMA, NHS Employers and Department of Health & Social Care have reached an agreement concerning the local Clinical Excellence Awards (CEA) scheme, in the form of an out-of-court settlement arising from the Association’s continuing legal action around the contractual status of these awards.
The agreement will, in effect, secure the overall value of consultant awards (~£300m) for the future; this represents a significant proportion of the of the total consultant pay bill which the Government had, at one stage, threatened to remove.
How did we get here?
During negotiations around the national consultant contract, the Government indicated that it could seek to remove the CEA scheme and/or withdraw future funding. As a consequence, the BMA sought legal advice on the status of awards. This advice suggested that the CEA scheme is of contractual effect.
The BMA subsequently undertook a legal challenge against the Secretary of State for Health. This legal action was conducted on a number of grounds, including challenging the reduction in funding in recent years and the discontinuation of some local award rounds. Following several years of negotiations, the parties reached an agreement on the terms of an out-of-court settlement which was subsequently approved by the Government, NHS Employers and by the BMA consultants committee.
Why wasn’t the legal action pursued?
While we were confident in the strength of our case, there are always risks involved in bringing legal action to court, as it leaves determination of the issue in the hands of a third party. In view of the importance of these monies both to individuals and to the overall consultant pay envelope we felt it was appropriate to take an approach that would remove any uncertainty about the outcome and, consequently, members’ income.
We believe the prospect of legal action influenced the Department of Health & Social Care and NHS Employers and facilitated the resulting agreement. We think that this agreement secures the majority of what we hoped to achieve through the legal action, ensuring that those with awards could expect to continue to receive them and, crucially, to guarantee that awards rounds would continue to be run.
Furthermore, we have secured an increase in the minimum investment in the local awards from 0.2 per FTE to 0.3. This increase of 50% is partly paid for by the move away from pensionable awards for new awards and new money. After this point, the annual investment in performance pay will be fixed at 2016/17 levels and, as now, subject to increase in line with workforce expansion and any recommendations for uplift made by the DDRB and implemented by the Department of Health and Social Care.
My employer says it won’t implement this deal
This agreement has been incorporated into the 2003 consultant Terms and Conditions of Service (TCS). As a consequence, it clarifies that access to LCEAs, and the right to retain them in accordance with the terms of the settlement, are a contractual entitlement as a result of the settlement the BMA has reached.
If an employer who employs consultants on the 2003 TCS then deviates from these terms they will be in breach of contract. In such an instance the BMA would support its members in bringing a claim against such a breach.
My employer says it cannot afford to implement this deal
Local Clinical Excellence awards have always formed part of the overall consultant pay bill and the BMA argued that the unilateral reduction in funding of the scheme was unlawful. The deal has clarified that position going forward. Trusts will simply be spending the amount that they always should have on the LCEA scheme and this is not an additional cost pressure. Trust finances will not be a reason not to run awards rounds in line with the terms of the settlement. Failure to do so would leave an employer open to breach of contract claims (see above).
My trust is planning to remove all CEAs immediately now this has been agreed
It is a contractual entitlement for consultants to retain existing LCEAs in accordance with the terms of the settlement. In failing to comply with those terms, by unilaterally removing LCEAs, an employer would leave themselves open to breach of contract claims (see above) that the BMA would immediately seek to enforce.
This seems to be of much lower value than the previous scheme – is it?
No. In fact, the level of funding has increased from a minimum of 0.2 to 0.3 awards per eligible consultant for the first three years. This is met partly through the reinvestment of employer pension contributions. As such, the value of the scheme remains as it has been in the years leading up to the deal, and potentially more given that a number of employers have failed to run LCEA schemes in recent years. The settlement also guarantees this level of funding into the future, subject to increase in line with workforce expansion and any recommendations for uplift made by the DDRB and implemented by the Department of Health and Social Care.
My trust has failed to run awards rounds in previous years. Does the settlement address this loss?
Following legal advice taken, the BMA believed that the CEA scheme was contractual. If we were successful then it was potentially a breach of contract if trusts had not run rounds prior to the agreement. However, further legal action would be required on behalf of the individual consultants taking legal action against their employer directly. This would potentially be very challenging as the consultants would probably need to prove that they would have been successful if an award round had been run. Awarding of a CEA is necessarily a highly competitive process and in a scenario in which there were no rounds run, there would be no applications submitted or scored to support their claim.
For these reasons, the settlement focuses on contractually ensuring that awards rounds are run and that this issue is not allowed to recur.
Will there be a ballot?
The BMA has committed to ballot members on the introduction of a new consultant contract, around which negotiations are still ongoing (see below). This deal has been reached separately and is in direct result of the legal action undertaken by the BMA on behalf of its members. As such, it represents an out-of-court settlement between the BMA and the Department of Health and Social Care, resulting in the jointly-agreed inclusion of a new schedule within the existing contract.
The details of the agreement have been discussed in detail by your representatives on the BMA consultants committee who voted by a large majority to accept the out of court settlement in December 2017. Since that time the Consultant negotiators have been working with their counterparts from NHS Employers and The Department of health and Social Care and their legal teams to finalise the deal.
In order to ballot on the out of court settlement, we would have needed to explain the deal in detail before agreeing the deal. We took the view that this would run the risk of exposing substantial detail about the basis of the BMA’s legal case before any such case was heard. While it is a strong case, the prior release of such detail could have undermined its successful prosecution. Additionally, conducting a ballot would have meant a minimum of a further year’s delay and, given the increasing numbers of trusts failing to run awards rounds and the consequential loss from the consultant pay envelope, it was felt that this agreement should be made effective as soon as possible.
What about the rest of the consultant contract?
We appreciate that there will be some consultants who might feel frustrated that the offer of a new consultant contract is taking too long to finalise. As many of you will know, the initial proposals made by Government were far from attractive. Over the negotiating period, the offer has improved significantly but there is still some work to do.
It is worth noting that the process has been delayed because of the 2017 General Election, purdah and more recently due to uncertainty over Government pay policy in the public sector. We want to secure the best possible deal and that means we have to wait to see if more funding becomes available in the coming months following the conclusion of the annual Review Body on Doctors' and Dentists' Remuneration (DDRB) process. This is due in the early summer of this year, unless further delays emerge. Implementation of a new contract now expected in Autumn 2019 at the earliest. The BMA will continue negotiations until we feel there is an offer worthy of your consideration.