In September 2016 the chair of JDC wrote to all trusts in England explaining to them that they should delay introducing the 2016 junior doctor contract if they did not yet have the necessary arrangements in place to facilitate this.
There are numerous non-negotiable contractual requirements which must be in place for the 2016 contract to start being used, key examples include:
- The guardian of safe working hours
- The junior doctors’ forum
- An established electronic system for exception reporting with supporting technology
- A local Equalities Impact Assessment
- Locally negotiated processes for enacting various contractual clauses, such as the process for offering locum work to the NHS staff bank, where relevant
We asked trusts to delay implementation if these arrangements weren’t yet in place, yet we are aware many trusts have introduced the new contract from 5 October this year regardless.
It is unacceptable for trusts to continue to fail to implement these critical arrangements.
If your employer delays unreasonably and persistently in putting the above arrangements in place, there are some things you can do.
Email [email protected] or call 0300 123 1233.
Be ready to provide your BMA membership number, details of where you work and the ways you believe your trust is breaching the terms of your employment under the new 2016 contract by failing to implement any or all of the required arrangements above.
Raise this issue with your trust via your local grievance procedure
Local BMA staff will be able to advise you on this. You will need to explain in detail what essential aspects of the contract the trust has failed to implement, and what, if any, justification they have given for this, and demand immediate action to address the problem.
If immediate action is not forthcoming as a result of the grievance procedure, the BMA can advise whether your case meets our minimum chance of
success criteria for us to support you in bringing a legal challenge.
Make a legal challenge
A persistent failure to put in place the above arrangements that are required by the 2016 contract provides individual junior doctors with grounds for alleging that their contracts were being substantially breached.
This would be done by seeking a declaration from the High Court that the trust was acting in breach of contract, and the grant of such a declaration will likely be sufficient to achieve the result a claimant seeks (in this case, immediate action to implement the necessary arrangements that the trust has previously failed to make) without needing an injunction.