I have been sent both the 2002 and 2016 contracts together. I am not yet due to transition onto the 2016 terms and conditions, but my employer has told me I must sign and return both contracts now – am I obligated to do this?
It is lawful for your employer to do this, however, you are not legally obligated to sign a contract in advance. We advise junior doctors in this situation to only sign and return the 2002 contract, and wait until you are due to transition onto the 2016 terms and conditions before deciding whether to sign the 2016 contract.
Junior doctors exercising their right not to sign the 2016 contract in advance should take into account the effects that this may have on their continuity of employment upon the expiration of their current contract. If you receive any pressure to sign this contract, please seek advice from the BMA immediately. You should also continue to use the BMA's contract checking service before signing any contract.
If your contract under the 2002 terms and conditions is due to expire and your employer is only offering the 2016 contract in replacement, please refer to the guidance on working under protest.
I have been sent the 2002 contract with a variation clause that allows my employer to vary my terms and conditions to those under the 2016 contract at the date I will transition – is this legal?
Employers are not prohibited from using such variation clauses provided that they are specific in their application; such as exercising the right to vary the contract once the 2016 national contract is introduced.
Junior doctors that are offered these 'hybrid' contracts can request that their employer identify in writing the potential changes that will arise as a consequence of the exercise of this future variation clause on the basis of the need to be fully informed of all such potential future changes before signing the contract.
You should continue to use the BMA's contract checking service before signing any contract.
What changes have been made to address concerns raised about equalities?
The Acas agreement introduced several measures to improve equality of opportunity, including:
- An accelerated training support programme to help those who take time out for reasons such as maternity or caring responsibilities to catch up with colleagues. This support will include mentorships, tailored teaching, and extra funding for study leave.
- Pay protection for those who choose to re-train in a different specialty as a result of a disability or caring responsibilities.
- Safe working guardians to oversee employers' performance on diversity and inclusion. The BMA, Health Education England (HEE), and NHS Employers will also put in place equalities monitoring mechanisms for all protected groups.
- A review, led by HEE, of processes which allow transfer between regions, joint applications between couples who are married or in a civil partnership, and training placements for those with caring responsibilities within defined travel times.
As part of the agreement, the BMA and NHS Employers will also draft guidance about doctors with caring responsibilities, flexible working arrangements, and balancing work and personal leave. These measures will help to address a number of challenges that junior doctors - particularly those with caring responsibilities - often face during their training.
An equalities impact statement was published with the final terms and conditions. Read the statement
What new safeguards have you negotiated?
Throughout the negotiations process, the BMA has been clear that the 2016 contract must prioritise the safety of doctors and their patients. We believe this contract has made significant improvements on what had previously been offered, including clear contractual limits on working hours, the taking of safe breaks during shifts, and protected rest periods.
In particular, we have strengthened the requirements and powers surrounding the 'guardian of safe working' role. This will help significantly to ensure that junior doctors are working safe, sensibly-designed rotas, which will benefit both patients and doctors. The guardian of safe working must be a senior appointment with no other role in the management structure at the trust, and must be appointed by a panel that includes junior doctor representatives. The guardian will be advised by an elected junior doctors' forum who will scrutinise the use of guardian fine money in the trust. Any disputes relating to the guardian's decision can be escalated to a final stage panel which must include junior doctor representatives from the BMA. Where there are concerns regarding the performance of the guardian, the BMA can raise those concerns with the Trust Medical Director.
In addition, the contract now explicitly enshrines the protection of junior doctors who raise concerns in line with whistleblowing legislation. It is vital that doctors feel empowered to speak out against unsafe working practices and this contractual safeguard is critical both to patients and the health service.
What happens to the money raised through fines resulting from unsafe rotas?
The contract is clear that money raised through fines has to be used to benefit the education, training and working environment of trainees. It is a responsibility of the guardian of safe working hours to work with the junior doctors' forum to work out how funds should be allocated. These funds must not be used to supplement the facilities, study leave, IT provision and other resources that are defined by HEE as fundamental requirements for doctors in training and which should be provided by the employer or host organisation as standard.
The details of the guardian fines will be published in the organisation's annual financial report (accounts), which are subject to independent audit. The guardian's annual report must include detail on how the money has been spent.
My trust doesn't seem to be taking seriously their responsibility to recruit an independent guardian of safe working hours, doesn't the contract require them to do this?
Yes it is a contractual requirement for employers to ensure all trainees can benefit from the safeguarding of an independent guardian. There are various contractual requirements around the recruitment process which must be followed.
The employer or host organisation must appoint a guardian - it is not an option to not recruit one. The appointee will not hold any other role within the management structure of the employer or host organisation. The employer or host cannot open the role up to trust management if they cannot recruit. 50% of the 4-person interview panel must be junior doctors nominated by the LNC and at least one must be based at the appointing employer. The panel must reach a consensus. If the junior doctors do not agree with the appointment, the application process must be re-opened. Employers must ensure that sufficient funding is allocated to the role to attract high quality candidates, and to allow the guardian enough time to do the job properly.
Are there any changes to the dispute process for the outcome of work schedule reviews?
The process for dealing with individual disputes for the outcome of work schedule reviews largely follows the process set out in the March contract offer, however significant improvements have been made to the final stage grievance process. It is now a requirement that any final stage grievance panel includes a representative from the BMA (or other recognised trade union) nominated from outside the employer, in addition to the hearings being conducted in accordance with the ACAS 'Code of Practice on Discipline and Grievance in the workplace'.
In addition, if it is identified that issues or concerns of a work schedule review may affect more than one doctor working on a particular rota, a joint review will be carried out. Where appropriate, any changes may be agreed to the working pattern for all affected doctors on that rota.
What is the impact of Brexit on working time law?
The protections built into the 2016 contract to limit hours have been done so to promote safer working. In addition to the role of the guardian of safe working hours and the penalties that the guardian can apply, the restrictions – which mirror or in some cases go beyond the European Working Time Directive (Working Time Regulations in the UK) rules – are contractual. Therefore normal legal routes could be followed should an employer knowingly break their obligations under that contract, once it has been implemented. The provisions of the UK working time regulations are embedded into the TCS, so even if they were to be repealed, the contractual provisions would continue to apply.
Can my employer make me opt out of the working time law protections?
It is possible to sign a form stating that you voluntarily ‘opt out’ of the WTR (Working Time Regulations) rule that you must not work more than 48 hours on average per week. However, you cannot opt out of the rest requirements and are still limited to working no more than 56 hours per week on average. Opting out of the WTR’s protections is entirely your choice, and it is important to weigh up the risks and benefits before doing so. Your employer can ask you to opt out, but you can’t be sacked or treated unfairly for refusing to do so. You can opt out for a certain period or indefinitely, and you can withdraw your opt out at any time. It must be voluntary and in writing. If your employer presents you with an opt-out form as part of routine paperwork at the start of a placement, you are not obliged to sign it, and if any pressure is applied to you to opt out, contact the BMA as this may constitute bullying and/or harassment.
Why are doctors at nodal point 2 exempt from the restriction on working more than 1 in 2 weekends?
During negotiations the BMA advocated strongly for a fully robust set of restrictions around working hours and rest requirements to ensure the safety of junior doctors. These restrictions represent a significant change and are more comprehensive than the current working hours limits.
However, many doctors pointed out to us that the restrictions we introduced could cause a real workforce shortage in the specific area of Foundation Year 2 rotas in emergency medicine. So, rather than introduce limits that could damage patient care and training opportunities for doctors, we made a pragmatic compromise and made one very limited exemption to this rule - on the basis that this will be reviewed as part of the scheduled contract review in two years' time when it is expected that workforce concerns will have been addressed.
Which specialties are designated as 'hard to fill' for the purposes of the provisions on pay protection when switching specialty?
Currently the hard to fill specialties are designated as general practice, emergency medicine and psychiatry. The flexible pay premia for general practice is a different amount as it is awarded partly to recognise the unique working pattern of GP trainees who are working in a GP practice setting and the reduced opportunity for out of hours work, but it is also currently designated as a shortage specialty.
The specialties designated as hard to fill are set out in Annex A and may be subject to change in future years subject to changes in workforce levels, however once a shortage specialty FPP is awarded the trainee will continue to receive it at the rate applicable when first awarded until they complete their training programme, regardless of whether or not the specialty is still designated as hard to fill.
Will the BMA now abandon its judicial review?
We launched a judicial review of the decision to introduce the 2016 contract on the grounds that the Secretary of State had not demonstrated that he had fulfilled his public sector equalities duty, namely to consider and have due regard to equalities issues in policy announcements. The Secretary of State published an equalities impact assessment retrospectively in March 2016, and a further equalities statement was published in May following agreement on the contract offer – to reflect the changes made in the intervening period.
The BMA has now taken the decision to write the Government, with a view to not proceed with this judicial review given that the original grounds – the Secretary of State's failure to consider the equalities impact of a contract whose imposition he announced in February – are now essentially redundant. It is a source of considerable concern that it took the threat of judicial action – by the BMA and others – for the Secretary of State to attempt to follow the correct process in considering the equalities impact of a contract which will affect the working lives of junior doctors in England.
However, in light of the Secretary of State's announcement that he will impose the contract which junior doctors rejected the BMA has instructed Queen's Counsel to investigate the merits of a new judicial review. Junior doctors continue to raise concerns about a number of issues in the contract and we continue to press for these to be addressed in negotiations and for the Government not to proceed with imposing a contract that junior doctors have rejected.