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Junior doctor contract review 2018-2019 and the gender pay gap

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This page sets out the background and current position around the gender pay gap and how it relates to the review being undertaken into the 2016 junior doctor contract.

  1. Background
  2. What the gender pay gap is
  3. The review of the gender pay gap in medicine
  4. The legal right to equal pay for equal work
  5. Equality Impact Assessments
  6. The senior decision makers allowance and the 2016 contract
  7. Considering a fifth nodal point
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Background

The BMA is a key stakeholder in the independent review of the gender pay gap in medicine and sits on the review’s steering group. This independent review was in part commissioned in response to the 2016 junior doctor contract dispute, and the current review of the 2016 contract is factoring in the key concerns and ongoing research of the gender pay gap review.

The BMA junior doctors committee is also lobbying on wider issues of concern to trainee doctors such as the right to shared parental leave and the cost of training for LTFT doctors.

 

The gender pay gap

The gender pay gap is the difference in average hourly pay between all male and female employees. The gap reflects a range of factors, often interlinked, including:

  • Differences in the kind of jobs that men and women do
  • Women are under-represented in higher paid senior and managerial jobs
  • Unequal impact of parenting and caring responsibilities
  • Working part-time and breaks in employment
  • Discrimination in pay

 

The review of the gender pay gap in medicine

The aim of the review is to quantify and understand the factors leading to the overall pay gap between men and women doctors and to make recommendations that will help to close it.

Based on payroll data from the Electronic Staff Record and HMRC data for GPs’ earnings, the gender pay gap for doctors will be calculated and analysed to identify each of the contributory factors. The review team have also carried out a survey of a representative sample of the profession, in-depth research interviews with a small sample of doctors, and a literature review.

The review is expected to release and publish initial, high level research findings in April 2019. 

The BMA has also set up an internal advisory group with representatives from all the main branch of practice committees, the LTFT forum and devolved nations to inform the BMA’s input to the review.   

Read more about the gender pay gap review in medicine

 

The legal right to equal pay for equal work

The statutory right to equal pay between men and women doing equal work in the Equality Act 2010 is not the same as the gender pay gap. The gender pay gap compares the average pay of all men and all women, not just those doing equal work. Equal work is defined as the same or broadly similar work, or work that is rated as equivalent by a valid job evaluation scheme, or work that is different but of equal value in terms of things like skill, responsibility or effort. 

A woman (or man) is entitled to the same pay as a man (or woman) doing equal work unless there is a relevant material factor that can genuinely explain the difference in pay. A material factor could be a difference in relevant qualifications or skills, location (e.g. London weighting), or identifiable differences in performance.

A material factor must not result in direct or indirect discrimination. Some factors like paying extra for unsocial hours might place women at a disadvantage because they are less likely to be able to work unsocial hours, but it may be justified if it is a proportionate means of achieving a legitimate aim, for example, it is needed to get sufficient people to cover a service outside standard hours. 

 

Equality Impact Assessments

Public authorities are bound by the PSED (Public Sector Equality Duty) in the Equality Act 2010. The PSED requires public sector organisations in all their functions, including employment, to pay ‘due regard’ to the need to prevent unlawful discrimination and harassment, advance equality of opportunity, and promote good relations. ‘Due regard’ means regard that is proportionate to the policy being considered and its relevance to equality.

To fulfil the PSED, a public sector organisation needs to give consideration to any likely impact on equality before making decisions and they need to monitor the impact on equality and review policies after implementation. The best way to achieve this is through carrying out an Equality Impact Assessment. An EIA should involve: 

  • Gathering and considering information about who is going to be affected by a policy in practice. This includes ensuring that the information gathered is sufficient to assess impact. 
  • Engagement with relevant stakeholders. 
  • Consideration of how to eliminate any unlawful discrimination and eliminate or mitigate any negative impact on equality or good relations that is identified. 
  • If potential indirect discrimination is identified but the organisation believes a policy or practice is justified as a proportionate means of achieving a legitimate aim this should be made clear in an EIA too. 

Public authorities can also take other considerations into account besides equality when making decisions or reviewing policies. 

The Department of Health and Social Care is bound by the PSED. It should therefore carry out a full equality impact assessment before putting any proposals that come out of the review of the 2016 junior doctor contract to a referendum.  

 

The 2016 contract and pay

The junior doctors conference last year supported a resolution to pursue a fifth nodal point for senior decision makers (SDM). We are aware the SDM allowance or a fifth nodal point might have the potential to widen the gender pay gap. Although one of the reasons for JDC proposing a fifth nodal point in place of the SDM allowance was to partly mitigate the equalities impact.

 

The SDM allowance in the 2016 junior doctors contract

The 2016 terms and conditions for junior doctors stipulate the following (Schedule 2, paragraph 45):

45. From 2 October 2019 onwards an allowance shall be paid to doctors who are formally designated by their employer to undertake roles as senior decision makers in line with appropriate clinical standards. The value of such an allowance will be set out in Annex A. 

As part of the 2018 review into the contract, the BMA discussed this clause with NHS Employers to explore options for how it should be implemented. We raised concerns that any pay system whereby a substantial element may be down to employers’ discretion would be riddled with bias and be open to abuse. The BMA also consulted both the JDC and the Multi-Specialty Working Group (MSWG) to source views on how trainees thought the SDM should be defined and implemented. 

Various options were discussed, including one where the parties jointly agreed eligibility criteria and one where the role was strictly linked to grade. The responses we received from trainees strongly favoured the latter option. We also believed that any system whereby a trainee would need to apply to be recognised as an SDM would be ridden with negative equalities implications as women are often less likely to apply for awards and recognition. For example, data on awards handed to senior doctors shows that women are significantly under-represented in CEA applications. 

There is also substantial research which suggests that the more pay is open to individual negotiation, the greater likelihood there is for unequal pay and an increased gender pay gap.

Trainees expressed that as different specialties would have different definitions of what constituted an SDM and given that this would further vary by employing organisation, such a system might be too complex to implement fairly and result in disputes over eligibility. 

 

Considering a fifth nodal point

In order to mitigate against concerns about bias and disadvantage coming into a system of discretionary SDM allowances, the BMA explored the idea of having a fifth nodal point. This was partly steered by motions presented at the 2018 junior doctors’ conference which called on negotiators to push for a fifth nodal point rather than an SDM allowance.

The BMA has explored the fifth nodal point as a way of ensuring all trainees would receive the additional pay after reaching a specific grade. There would be no application system nor any criteria beyond progressing to the relevant grade. 

The gender pay gap is influenced by a myriad of factors and it would be unwise to definitively predict changes in the absence of modelling. Long pay scales have been identified as ‘risk’ factors for introducing indirect discrimination against women because they take longer to progress if working part-time or they have breaks in employment. One of the primary reasons the BMA pushed for a four nodal point pay scale in 2016 was to mitigate against the removal of automatic pay progression based on years in training. 

It therefore seems likely that the introduction of a fifth nodal point – whilst better than an SDM allowance as currently set out in the 2016 TCS – could risk exacerbating the gender pay gap when compared to having no additional allowance or higher salary point at all. This is because those who take longer to progress through the nodal points tend to be women who work less-than-full-time. An equality impact assessment will be conducted following conclusion of negotiations looking at the impact of the proposed option.

We encourage you to consider these issues, discuss them with your colleagues and let us know your opinions. Junior doctor input into the contract review is crucial. You can find out more about the contract review and discuss the issues outlined further at your regional junior doctors committee.