The pitfalls in junior hospital doctors' contractsBMJ 1996; 313 doi: https://doi.org/10.1136/bmj.313.7052.2 (Published 03 August 1996) Cite this as: BMJ 1996;313:S2-7052
The BMA's general manager for England, Bill Mayers, and industrial relations officer, Jim Milligan, help you to avoid them
Every week a trust somewhere will breach the contract of a junior hospital doctor, despite the fact that contracts are legally binding. Exactly what can be done about it will depend on whether or not a financial loss has been suffered. If, for example, a junior doctor does not get the right payments for additional duty hours (ADHs) as set out in the terms of service the BMA could take legal action. In one case this led to a senior registrar receiving nearly £2,000 in back pay. If no direct financial loss has been suffered - for example, where a trust changes duties unilaterally - the BMA would resist such changes by invoking other procedures.
The document we commonly refer to as the contract is not the only thing that constitutes the legal contract. Firstly, comes the offer of a job, possibly verbally, at interview, then a letter of appointment. This should be followed by the document which may be labelled “the contract.” Even then this is not the full story.
Junior doctors' contracts incorporate two weighty volumes of terms and conditions of service, those for hospital medical staff as well as those for NHS employees generally (Whitley). Yet more elements of the contract are contained in the statutory rights that employees have - for example, those relating to sex and racial discrimination. Yet more again will be contained in what those in the trade refer to as “custom and practice” elements. These may be more difficult to identify because they will not be written down. For example, how study leave guidelines may be operated by a particular trust or how cover for leave is arranged.
All of the above constitute a legally binding agreement between a doctor and the employing trust. For junior doctors, as with other grades, the BMA has negotiated a model format that should be used by NHS employers. For this reason, among others, we strongly urge BMA members to have their contracts vetted by the local BMA office. The most recent model contract is the one for higher specialist trainees in the specialist registrar grade.
Salary, at a particular grade, incremental point, ADH rate, with protection if hours are reduced
Leave - holidays, study leave, maternity, sick, and various forms of special leave
Membership of the NHS pension scheme
Accommodation provided in certain circumstances, free for compulsory residents
Medical indemnity for NHS work
Expenses such as travelling and removal if appropriate.
The contents of the contract
Junior doctors have to carry out certain duties while in training in return for certain contractual benefits. The duties will include work relating to the prevention, diagnosis, or treatment of illness under the NHS Act. In particular, there should be a job description giving an accurate picture of the post and defining the duties. Changes to this should be made only by mutual agreement.
In return for undertaking certain duties, a doctor can expect the benefits set out above. In addition, a trust would be required to follow the national procedures should there be allegations of professional as opposed to personal misconduct. There is also the grievance procedure for issues to be taken up for any doctor.
Frequently, cases that the BMA takes up on behalf of junior doctors concern ADH payments - for example, whether or not the correct assessment has been made according to the hours worked. Quite often hours are underassessed.
The payment of certain expenses, such as removal and travelling, also causes several problems. Although removal expenses are still payable to junior doctors, they are generally subject to an upper limit of around £8,000. Expenses will be reimbursed, generally on the production of receipts, subject to this overall limit. Travelling expenses do not require the production of receipts, but milage will be payable at a certain rate depending on the size of the car. The public transport rate should be payable only where public transport itself is available.
Maternity leave can also cause problems. Judging by their ignorance of the Whitley maternity provisions some personnel officers act as though NHS staff never become pregnant. A woman needs to have one year's service in the NHS and to state her intention to return in order to claim maternity leave. Any woman working on less than a six months' contract - for example, vocational trainees in general practice - may have particular problems because they will not be eligible for statutory maternity pay. But this should not affect the overall level of benefit provided nor the length of leave.
(1) In one trust house officers were contracted to provide 1 in 5 cover on an on call basis. There were two such teams. The work pattern produced little rest while on duty and the house officers should have been paid at the partial shift rate, as provided for in the national terms of service.
The trust initially refused to make the appropriate payments, so all 10 house officers brought an action in an industrial tribunal with the BMA's backing. The grounds for the action were that since the appropriate payments had not been made for the hours worked, effectively there was an illegal deduction from salary. Industrial tribunals are now empowered to hear such actions, which in the past may have gone to the small claims court.
It was only after a hearing date was fixed for the tribunal that the trust relented and agreed to pay the proper rate for the ADHs. As a result, each of the 10 house officers got a pay increase of approximately £150 a month.
(2) A registrar had been appointed to a rotational training scheme which was spread over a four year period. Not all of his placements were specified, and over the four years there were reductions in the hours. His employer sought to reduce his pay on the grounds that he would be doing fewer hours.
The national terms of service, however, provide for protection of salary in such situations. This means that no reduction should be made in contractual pay even though fewer hours are worked. This is clearly an important protection at a time when junior doctors' hours are being reduced. After it was insisted that the protection terms should be applied, the registrar received £2,400 gross in back pay.
(3) A senior house officer was successful at interview and was discussing the ADH payments. Personnel told him that a certain number would be paid, but nothing was put in writing. When he started he found the ADHs were lower than he had been told, to the tune of four at full shift rate.The BMA argued that the verbal offer constituted a binding contract and the original figure, worth £170 per month more, was reinstated.
Problems - what to do
Although the BMA is the first point of contact for advice, junior doctors should discuss any problem with, and seek the support of, their consultant. After this the matter might be taken up with the personnel department. If this fails members should contact their local BMA office, which can advise on whether the matter can be taken further using local procedures or whether the BMA would take the issue up direct with the trust.
The approach to a problem will vary according to whether or not it constitutes a breach of contract in a fundamental way or whether it is something less. No action would be taken on behalf of any member without his or her expressed wishes.
Junior doctors should not sign any contract unless they have received advice from the BMA. Since the contract is binding on both parties, it may be enforced by legal action if necessary.