Junior doctors are currently in a pay dispute with the NHS involving strike action.
Consultants will no doubt want to work with employers to ensure that services are still able to operate effectively. However, they should not be expected to do so without agreement and without being appropriately remunerated.
In this situation, the responsibility to provide safe patient care lies with your employer. They should now be making full preparations. Large numbers of junior doctors are expected to be on strike, and it must be assumed that there will be none available to work.
Consultants have a contract and job plan and these cannot be ignored without the explicit agreement of the consultants concerned. Consultants also have an ongoing professional responsibility to their patients and must be aware of their limitations if they are being asked to work outside their own scope of practice.
Below we detail your rights and responsibilities in the context of some of the scenarios which may occur as a result of industrial action by junior doctors.
You are not obliged to ‘act down’ and provide cover for junior doctors on strike
In order to ensure patient safety during junior doctor strikes, it is highly likely that consultants will be asked to act down to cover for junior doctors. In no circumstance are you obliged to provide this cover where you are not able or do not wish to do so. However, it is in all our interests that strike action is sustainable and does not impact patient safety.
‘Acting down’ to cover absent junior doctor colleagues is not part of your contractual terms and conditions. Health boards must therefore reach an agreement with consultants regarding any arrangements to cover for absent junior doctor colleagues. Guidance on industrial action from NHS Employers (England) own legal advisors Capsticks acknowledges that ‘where consultants are asked to undertake work in addition to the sessions set out in their job plan to provide cover for more junior staff, this will be an extra-contractual arrangement which they can either agree or refuse.’ However, your ability to negotiate additional pay for acting down depends upon the time of day that you are being asked to do so.
During Monday to Friday, 9am to 5pm
Between 9am and 5pm on a weekday, regardless of whether you are already scheduled to work in your job plan, if you are asked to act down you can request additional pay for doing so. We believe that the BMA rate card rates are an appropriate request in these circumstances.
Contrary to what some employers have argued, this does not constitute ‘double payment’ – rather, it is payment of the amount needed to bring the consultant’s usual rate of pay up to the enhanced rate indicated on the BMA consultant rate card.
Out of hours (outside Monday to Friday, 9am to 5pm
If you are asked to cover for junior doctors between 5pm and 9am on a weekday or anytime on the weekend, different rules apply. Paragraph 3.8 of the Amendment to the Consultant Contract in Wales states that in exceptional circumstances where a consultant is asked and agrees to be immediately available, i.e. providing resident on-call cover, they will be paid at three times the hourly rate of point 6 (the top) of the consultant pay scale. This equates to £171.26 per hour. You will also be entitled to a compensatory rest period the following day
Whilst we hope that many consultants will support their junior doctor colleagues in this way, you must make sure that you have been given the ability to do so safely and sustainably. It may be appropriate for scheduled care before or after strike action, as well as during strike action, to be cancelled or rearranged in order to allow you to provide additional cover, e.g. at night, during strike action.
You are not obliged to agree to work resident on-call
As outlined above, acting down to cover an absent junior colleague is extra-contractual. Paragraph 3.8 of the Amendment to the Consultant contract in Wales makes it clear that acting down in these circumstances must be with your agreement. The employer, therefore, has a responsibility to ensure that this junior doctor gap is covered in advance. However, if you are being asked to act down, and/or essentially become resident on-call, it is essential that this is done safely both for you and the patients in the department.
Your employer must comply with the UK working time directive and ensure you have appropriate rest. You therefore cannot work the day before or the day after a resident night shift.
Although as the on-call consultant, you have professional responsibilities to provide care for patients, the employer still has a responsibility to provide safe staffing. Therefore, if you agree to act down, a second consultant must be made available to provide additional cover as you cannot be expected to undertake both roles simultaneously.
If as the on-call consultant, you agree to act down and/or be resident on-call, this is work that is in addition to your job plan. It is important that it is remunerated separately. Paragraph 3.8 of the Amendment to the Consultant Contract in Wales states that where a consultant is asked to be immediately available, i.e. providing resident on-call cover, they will be paid at three times the hourly rate of point 6 of the consultant pay scale. This equates to £171.26 per hour. You are also entitled to a compensatory rest period the following day.
You are not obliged to agree to be re-deployed
Covering for junior colleagues during periods of strike action is clearly extra-contractual so you are not obliged to agree to redeployment from your usual role.
Where an employer wishes to redeploy you to a role that would require you to ‘act down’ (i.e. provide cover for a junior colleague), they will need your explicit agreement, including on the rate at which this work will be paid. Please see our guidance above on acting down to cover junior doctors on strike.
On the day of strike action, certain activities that you would usually be undertaking as Direct Clinical Care (DCC), such as a theatre list, or some forms of Supporting Professional Activity (SPA), like teaching trainees, may need to be cancelled because it cannot operate during industrial action. Where this occurs, you still cannot be redeployed to other forms of DCC activity that you are not job planned to be delivering, unless you agree to it.
Managing expected gaps at junior doctor level is the responsibility of the employer
Any junior doctor strike action will be communicated in advance, so it is the direct responsibility of the employer to make arrangements for covering these gaps.
As the consultant already job planned to work during that period, you will still have a responsibility to fulfil your agreed duties. Even though your employer will already have notification of the dates of any action and knows the staffing levels, we recommend that you also highlight in advance to your employer how many gaps will need to be covered for this period by non-striking medical staff.
If this cover is provided by other consultants, they are being asked to “act down to cover absent junior doctor colleagues”. This requires their agreement as it is extra-contractual, please see above the guidance on acting down.
If your employer has not acted appropriately in ensuring safe staffing, they are risking patient safety and they are the ones liable for any adverse consequences.
Raising concerns about sufficient staffing levels
As your employer will be given notice of the industrial action, it is their responsibility to ensure the safe delivery of care. Your employer will be responsible if at any point patient safety is compromised. However, you also have a professional responsibility towards your patients.
Often, there will be pressure and expectation on consultants, as service leaders, to facilitate alternative arrangements, such as in drawing up rotas and rearranging elective sessions. However, as noted above, there may be limits to what can be feasibly arranged on days of industrial action.
If you have concerns that their safety cannot be maintained during any part of the operation or during the post-operative period, it would be appropriate for you to decline to operate in conditions where the overall patient care arrangements are deficient to the extent that their safety is potentially placed at risk.
If you have significant concerns about how your service will function during industrial action, when your employer is unwilling to make any alternative arrangements to accommodate the lack of staff, then you may need to refer to the BMA’s guidance on raising concerns.
You have a professional obligation to perform within your sphere of competence
‘Acting down’ to provide cover for absent junior doctor colleagues may involve tasks that you have not had to perform for many years, and you may have concerns about the ability to carry out certain tasks involved in ward work.
A consultant has a professional obligation to act within their sphere of competence. As such, you need to be clear with your employer that you do not feel that you can safely and competently perform the work required and that doing may expose you to enhanced risk of medico-legal consequences. If your employer refuses to take the necessary action to make alternative arrangements – whether providing other suitable cover or cancelling or rearranging scheduled care – then, as above, you will need to follow our guidance on raising concerns.
Employers cannot cancel job planned SPAs (supporting professional activities)
Job plans are contractual as they are part of the consultant contract. As such, the contents of a previously mutually agreed job plan cannot be unilaterally overridden by an employer.
Consultants may choose to enter into an agreement with their employer to re-schedule their SPA sessions for some point in the future in order to provide immediate clinical cover. However, they are under no obligation to do so, and an employer certainly can’t unilaterally decide that the SPA session should be cancelled altogether. If they wish for you to perform DCC (direct clinical care) work in this session, they must obtain your agreement.
It is important that if you agree to undertake DCC work in SPA sessions that this is remunerated appropriately. You have the option for this additional DCC work to be paid at the appropriate rates outlined in BMA consultant rate card or Paragraph 3.8 of the Amendment with the SPA work “time shifted” and done at a time of your convenience. Alternatively, you can request that future DCC work is cancelled for you to take the SPA time. It is important that any DCC activity that is to be cancelled is agreed upon at the time of the employer request.
Remember this is not annual leave and there is no compunction to give 6 or 8 weeks’ notice.
Employers are not entitled to cancel off-site private sessions
Under the terms of the consultant contract, an employer is not entitled to unilaterally dictate to a consultant that they should cancel a private session which is agreed in their job plan.
Private practice sessions are time when you do not work for your employer, staffing gaps due to industrial action would not give employers the right to demand the cancelling of private sessions to provide cover.
Employers should only cancel leave as a last resort
Employers will have advance notice of strike days and should make arrangements which don’t involve cancelling annual leave to ensure continuation of services to patients. As such, it should not be necessary for employers to try to cancel your leave. Seeking to cancel annual leave should be a last resort only after all other options have been considered and exhausted. If your employer seeks to cancel pre-booked leave, you should get in touch with BMA advisers directly on 0300 123 1233.
Employers can cancel pre-booked days of study leave to meet service requirements
However, an employee who has their study leave cancelled has a good argument for asking for reimbursement of any reasonable losses they suffer. As above, this should only be considered as a last resort after all other avenues (such as cancelling routine activity) have been exhausted.
Consultant clinical academics
The guidance above applies equally to consultant clinical academics employed in the NHS on an honorary contract. This is because the amendment to the consultant contract in Wales covers consultant clinical academics, in particular chapter 8.