In this situation, the responsibility to provide safe patient care lies with your employer. They should now be planning with local negotiating committees and 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.
It is essential that patient safety is maintained. The only feasible way for this to be achieved is for your employer to cancel almost all elective care prior to, during, and after the junior doctors’ action. Whilst the onus is absolutely on the employer to ensure patient safety, there are other factors that need to be considered by SAS and other doctors.
SAS doctors have a contract and job plan and these cannot be ignored without the agreement of the SAS doctors concerned.
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.
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.
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.
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
Providing 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.
SAS doctors have 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 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.
Managing expected gaps at junior doctor level is the responsibility of the employer
The 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 SAS doctor 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 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.
Can my employer force me to cancel job planned Supporting Professional Activities (SPA) sessions to provide cover for absent junior doctor colleagues?
SPAs form part of the Job Plan. Job plans are contractual as they are part of the SAS contract. As such, the contents of a previously mutually agreed job plan cannot be unilaterally overridden by an employer.
However, SAS doctors do not have an absolute right to refuse as they have a contractual obligation to be flexible and to co-operate with reasonable requests to cover for their colleagues’ absences provided the following four questions are satisfied:
- Is the employer’s request reasonable?
- Is the employer’s request of you safe?
- Are you competent to undertake the request?
- Is it practicable to do so?
Where these questions are satisfied, if the SAS doctor’s Job Plan is adversely impacted, a temporary Job Plan must be agreed between the SAS doctor and the employer. Therefore, SAS doctors may be required 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 if the conditions above are satisfied.
However, an employer can’t unilaterally decide that the SPA session should be cancelled altogether without prior discussion and agreement. If they wish for you to perform DCC work in this session, they must obtain your agreement but you are required to act reasonably and in line with your professional standards and obligations as set out by the GMC when deciding whether to agree.
I am a Specialist/Associate Specialist. What are my obligations for providing cover (‘acting down’) if a junior doctor in my department is absent due to strike action?
Acting flexibly and co-operatively to cover absent colleagues is part of your contractual terms and conditions if the request is reasonable, where you are safe and competent and it is practicable to do so. There is no absolute requirement to provide cover, but your employer may make reasonable requests to cover for junior colleagues. If you unreasonably refuse it could result in disciplinary action.
You are under no contractual obligation to prolong your working day to undertake work that has not been performed by colleagues taking industrial action. However, you do have a professional responsibility for continuity and coordination of care, and for the safe transfer of patients between different teams and you must ensure that you meet the professional obligations set out in the GMC’s Good Medical Practice.
Your employer has a responsibility to ensure safe staffing and you cannot be expected to fulfil the duties of multiple people. It is hard to say in advance what constitutes a reasonable request or an unreasonable refusal to cooperate with such a request. Clinical safety, however, should be a key factor. For example, it would not be reasonable for an employer to ask you to perform all the duties of a junior doctor as well as your own for the whole day, to undertake work that you are not qualified or experienced enough to undertake (such as work in a completely different speciality) or to do anything else that may result in your being too fatigued, unequipped or overburdened to be working safely. Nor would it be likely to be considered reasonable for you to be asked to undertake non-clinical work that would distract you from your usual clinical activities. If you feel that you have been asked to do any of these things, you should raise this with the medical director.
If a patient is at risk, any refusal to cooperate in assisting that patient is likely to be considered unreasonable and you will be more vulnerable than if the request were to undertake work that was not clinically urgent or was not clinical in nature at all.
If you are covering the work of a junior colleague, you must remember that you are still employed as a SAS doctor but are working at a lesser level of skill or responsibility than you do normally. If you are expected to use systems, such as electronic prescribing or discharging systems, which you are unfamiliar with you should raise this with your employer who may provide training and support to SAS doctors. You must be confident, nevertheless, that the responsibilities you have taken on are within your competencies. This may involve considering, for example, whether they are activities you have undertaken in the past as a junior doctor but with respect to which your skills have diminished due to lack of use or due to the methods of carrying out the activities having changed.
If you are asked to cover work within the limits of your contract during your working hours, then you will already be being paid for that time. If you choose to cover work outside of your contractual duties or contractual hours of work, we recommend that you should ensure that you are paid at the appropriate rates outlined in SAS extra-contractual rate card.
I am a Specialist/Associate Specialist. My employer has said they are entitled to re-deploy me to provide cover for junior doctor colleagues during their IA. Are they correct?
Your employer does not have an absolute entitlement to re-deploy you to provide cover for junior doctor colleagues during industrial action. However, they are entitled to expect you to act flexibly and cooperatively with a reasonable request to cover your junior doctor colleagues, provided you would be acting safely within your competence and it is practicable to do so.
If I am the non-resident on-call Specialist/Associate Specialist and the junior doctor in my department is absent, would I effectively be resident on-call?
The points raised above apply, i.e. that your employer may expect your flexibility and co-operation with reasonable requests to cover for your colleagues’ absences where you are safe and competent and where it is practicable to do so. If you are already required to be on an on-call rota in accordance with your Job Plan, you are paid an availability supplement whether your on-call rota is resident or non-resident.
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. Although as the on-call doctor you have professional responsibilities to provide care for patients, the employer still has a responsibility to provide safe staffing.
Your working hours must also comply with the UK working time regulations and ensure you have appropriate rest.
For those engaged on the Specialist terms and conditions of services (TCS) (2021), you are contractually entitled to declare with no detriment, that you are too tired to work after a busy night on-call. Any displaced time/activity should be rescheduled to take place at another time in your agreed Job Plan, or, where possible, covered by colleagues or, if necessary, cancelled. Such circumstances should not affect your earnings.
As a specialty doctor on a juniors rota, can my employer unilaterally schedule me to work additional hours/evenings/on-call shifts outside my job plan to cover juniors on strike?
Your job plan is contractually binding and cannot be unilaterally changed by your employer without your agreement by requiring you to work additional hours / evenings / on-call shifts. You are under no contractual obligation to prolong your working day to undertake work that has not been performed by colleagues taking industrial action.
However, as explained above, under the terms of your contract you are expected to be flexible and cooperative with reasonable requests to cover for your colleagues’ absences where you are safe and competent and where it is practicable to do so. Please see above for guidance as to relevant considerations as to what is reasonable and safe.
You also have a professional responsibility for continuity and coordination of care, and for the safe transfer of patients between different teams and you must ensure that you meet the professional obligations set out in the GMC’s Good Medical Practice.
Outside of these considerations, the decision to work overtime or additional hours rests entirely with you. In any case, your working hours must comply with the UK working time regulations and ensure that you have appropriate rest. For those engaged on the 2021 Specialty TCS, you are contractually entitled to declare with no detriment, that you are too tired to work after a busy night on-call. Any displaced time/activity should be rescheduled to take place at another time in your agreed Job Plan, or, where possible, covered by colleagues or, if necessary, cancelled. Such circumstances should not affect your earnings.
If you agree to work additional hours outside of your job plan, this will be extra-contractual work. Extra-contractual work should be paid separately to your usual contractual pay under a separate agreement. We recommend you ensure you are paid out at the appropriate rates outlined in the BMA minimum rate card for SAS doctors.
As a specialty doctor on a SAS rota, can my employer unilaterally schedule me to work additional hours/evenings/on-call shifts outside my job plan to cover for juniors on strike?
Please see the guidance for the above question ("I am a specialty doctor working on a rota alongside junior doctors. Can my employer unilaterally schedule me to work additional hours/evenings/on-call shifts which aren’t part of my job plan, in order to cover for junior doctors on strike?").
I am working on a local Trust contract and not the national SAS contract – can I be forced to cover for junior doctors on strike?
This will depend on multiple factors including the terms of your contract and the work that you’ve been asked to undertake. We would suggest that if you are unsure about this or have concerns, please contact the BMA directly with a copy of your contract at [email protected] so we can provide accurate advice.
If you have professional concerns or there are practical difficulties relating to any duties you are asked to cover, members should consider submitting their objection in writing to their Clinical Lead. We have produced two template letters that you can edit to address your own circumstances. These are to inform your employer that you will not undertake the additional work to cover junior doctor industrial action as you have professional or personal objections:
- Template letter 1 - refusal for professional objections
- Template letter 2 - refusal for practical objections
Please contact the BMA to register your refusal to undertake the work as soon as possible by emailing [email protected].