Junior doctors contract follow up - DAC Beachcroft

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Junior doctors contract follow up

Published On: 12 July 2016

Following the rejection by junior doctors of the new contract negotiated between the BMA and NHS Employers, the Secretary of State has now instructed NHS employers to impose/introduce it. A new suite of contractual materialshas been published by NHS Employers, including a new timeline for implementation. Although the phased introduction of the contract under new timeline will alleviate some of the pressure, and the pay points have now been finalised, there remains much to do for employers.

In April 2016 (at which time the government had made clear it would impose the contract) the BMA started a judicial review to challenge the imposition of the contract (due to alleged failures to carry out an equality impact assessment).  It is unclear whether or not the BMA will pursue this judicial review in the light of the Secretary of State's decision yesterday to impose/introduce especially given it agreed the contract  (subject to balloting its affected members).

What does this mean for NHS employers?

Some of the key features and practical points are:

  • Financial modelling: it will now be possible to assess the financial impact of the new contract in your organisation, given the revised pay structure. Of course this has to be measured against the work schedules your organisations will be putting in place.  Whether or not the new contract will meet the objective of being cost-neutral for the service as a whole remains to be seen.  Your organisations will have a clearer idea once this modelling is done. Please do discuss this with us.  We are very interested to know how the cost of the old and new contract will compare.
  • Transition to the new contract: the phasing of transition to the new contract has now been extended so that full implementation will not be complete until October 2017. F1s do not transition until November – December 2016 but of course will be starting next month.  As we noted in our previous alerter, employers cannot impose the new contract on existing doctors unless they are rotating to a new employer or taking up a new appointment on new terms. That being so, the proposal to transition obstetrics ST3s to the new contract from October this year, for example, might give rise to local challenges unless they are all rotating then.  
  • The model contract: employers should take care to ensure that the model contract for each junior doctor deals with the transition arrangements in accordance with the published timeline. The standard document simply incorporates the new 2016 terms and conditions of service (TCS) but, during the transition period, some doctors will begin their employment on the current (2002) TCS and then transition to the 2016 version later during their appointment. The model terms for those doctors will need to be modified to reflect that transition to ensure there is a clear agreement that as from the transition date the new terms will apply. This will be particularly important for doctors who are employed under a 'lead employer' arrangement.  As we have previously flagged, the National Terms include pay protection arrangements for those starting a role/rotation in August who are due less when they transition onto the new contract.
  • Disciplinary and capability procedures: there is no reference in the new Terms and Conditions or model contract to the 2005 "Maintaining High Professional Standards" (MHPS) framework for managing disciplinary and capability issues. Paragraph 189 of the 2002 contract expressly mandated employers to adhere to that framework but that is no longer a requirement. Many trusts have incorporated MHPS into their disciplinary and capability procedures for doctors and will now be keen to begin local consultation with a view to reviewing and replacing them with less cumbersome and time-consuming arrangements. How difficult this might be in practice will depend on the specific way in which individual employers consult on and/or negotiate changes to their local procedures.
  • The Terms and Conditions and model contract may be subject to a final "tidy up" to ensure all cross references are correct.

How DAC Beachcroft can support your Trust

There is obviously a big implementation task ahead. If you need any legal advice or additional HR resource, please contact Guy Bredenkamp, Nick Chronias, Udara Ranasinghe or your regular DAC Beachcroft contact.