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PLEASE KEEP THIS GUIDE
FOR FUTURE REFERENCE
What are the rules?
What is in this guide?
An explanation of:
• the New Deal
• the Junior Doctors’ banded contract
• the European Working Time Directive and
the introduction of a 48hr week in 2009
• How to work out your correct pay band
• The proper way to change your rota
• What to do if it all goes wrong
• Why this is happening
• What we are doing about it
• Where to get help
New Deal: controls on junior doctors’ hours
• A 1991 agreement between government, medical royal colleges and BMA
• It responded to health and safety concerns over long hours (previously
rotas with a one in two frequency of on-call working were common,
with up to 120 hours/week)
• Staged implementation to 1996
• Implemented a maximum 56 hours of ‘actual work’ (i.e. ‘on your feet’
treating patients etc. See below for definitions)
• Formalised full and partial shifts
• All parties agreed education and training could be delivered within the
limits and with shifts.
Table 1: New Deal summary
Foreword
This guidance was originally developed for the
initial 2004 implementation of the EWTD for
junior doctors. With the 2009 deadline for full
implementation fast approaching the JDC has
updated and re-issued this guide to help explain
the EWTD and its implications for those caught
up in changes to their rotas and working patterns.
As junior doctors, we know that across the country
juniors’ working patterns are being changed, our
posts rebanded, and a whole raft of measures to
reduce our hours is being implemented, often in a
seemingly haphazard way. The best way for you to
make sense of the opportunities and threats that
this presents for you is to have as much information
as possible. We hope that this is a useful summary
of what is happening and why, as the legislation
comes into full force. Please check the BMA
website from time to time, as we will be issuing
more guidance on this and other issues over the
coming months.
Ram Moorthy, JDC Chairman
Andrew O’Brien, JDC Deputy Chairman (Terms and
Conditions of Service & Negotiating)
What is going on?
Many junior doctors have found either that their
posts are being rebanded in ways that do not seem
fair, or have complained that they are being pushed
into a rota pattern that they do not want to work.
There are huge pressures to reduce junior doctors’
hours at the moment. The phased introduction of
the EWTD for juniors is now starting to bite. All
employers around the country must ensure all their
junior doctor rotas are in Band 1 by August 2009.
Why? Read on.
Maximum Minimum
continuous time off
duty hours between
duties (h)
Minimum
off duty
(h)
on call rota
72
56
32
(56 at w/e)
12
48+62 every 8h/32, 5h
21 days
continuous
at night
24hour
partial shift
64
56
24
8
48+62 every 6h/24 4h
28 days
continuous
at night
partial shift
64
56
16
8
48+62 every 4h or 1/4 of
28 days
OOH period
full shift
56
56
14
8
48+62 every Only breaks
28 days
All patterns of work are entitled to a 30 minute break for each period of 4 hours worked.
(OOH means out-of-hours, defined as all time outside 8am to 7pm, Monday to Friday)
New Deal definitions of work and rest
Actual work: the definition of hours of actual work will be that definition
used in the New Deal (ie includes all time carrying out tasks for the employer,
including periods of formal study/teaching, but does not include rest while oncall). For the purposes of defining work after 7pm, work begins when a doctor
is disturbed from rest and ends when that rest is resumed. This includes, for
example, time spent waiting to perform a clinical duty* and time spent giving
advice on the telephone.
Rest: All time on duty when not performing or waiting to perform* a clinical
or administrative task, and not undertaking a formal educational activity; but
including time spent sleeping.
Natural breaks (of at least 30 mins every four hours) do not count as rest.
*
2
Rest
Maximum Maximum
duty hours actual
weekly
hours
For example, a doctor waiting for the operating theatre to be prepared.
The rush to reband training posts explained
EWTD
The European Working Time Directive (EWTD) is designed to protect the health
and safety of workers by restricting the number of hours an individual can work
and imposing minimum rest requirements on all workers.
The EWTD dictates how many hours an employee can work and how much
rest they should take. It is enshrined in UK and European law and is
therefore not optional.
The EWTD states that employees (with few exceptions) should not work
more than 48 hours a week and that the following rest requirements
should be met:
• a minimum of 11 hours continuous rest in every 24 hour period
• a minimum rest break of 20 minutes after every six hours worked
• a minimum period of 24 hours continuous rest in each seven day period
(or 48 hours in a 14 day period)
• a minimum of four weeks paid annual leave
• a maximum of eight hours work in each 24 hours for night workers*.
*
junior doctors are unlikely to be classed as night workers. Under the
EWTD, night workers are defined as those who work at least three
hours of their daily working time during the night. This cannot be
assumed for junior doctors.
The EWTD became part of British law and applicable to the majority of workers
on 1 October 1998. Consultants and other career grade hospital doctors were
included in this initial legislation but junior doctors were excluded. A timetable
for doctors in training, to be included within the Working Time Directive
(Amending directive [2000]), was agreed in May 2000 between the European
Parliament and the Council of Ministers.
It was agreed that the EWTD for junior doctors would be implemented
gradually over five years. This meant that the limitation to 48 hours work
per week would only be introduced in August 2009. An interim 58 hour
week was applicable from August 2004 – this reduced further to a 56 hour
week in August 2007.
‘Opting out’: Any employee can choose to opt out of the hours limits.
However, for junior doctors this is not straightforward because they work in
teams on a rota. Junior doctors don’t have control over their own working
patterns, unlike career grade doctors, and as a result opting out individually
will be complicated. The JDC’s view is that only those junior doctors who
have independent control over their working hours should be able to
consider opting out.
Rest breaks: It is not possible to ‘opt out’ of the Directive’s rest breaks.
However, if the full 11 hours rest cannot be taken on any day, the missed
rest can be made up later as compensatory rest. This is only allowed
because a derogation from the 11 hour rule was agreed for doctors.
For more information on compensatory rest see below.
SiMAP/Jaeger
A 2000 European Court of Justice (ECJ) ruling, in a case brought by Spanish
doctors against their employers (SiMAP), declared that all hours spent
compulsorily resident at the place of work should count as work.
Therefore, old style on-call rotas with assumed periods of rest must now
count as continuous duty. The SiMAP ruling was reinforced in 2003 by the
Jaeger ECJ case, which also dealt with aspects of compensatory rest.
These rulings do not apply to those working on-call from home.
Pay Banding
Introduced in December 2000, the new banded pay
system for junior doctors was the result of lengthy
negotiations between the Department of Health and
the JDC. The prime aim was to secure fairer out-ofhours pay and the secondary aim was to give trusts
the incentive to reduce the number of hours junior
doctors were working. The New Deal hours and rest
requirements of 1991 were enshrined into contracts
and thus, for the first time, became legally binding
for PRHOs from August 2001 and for all other
grades of junior doctors from August 2003.
• There have been no changes in the rules of
the New Deal.
• There is a legal obligation on both trusts
and juniors to monitor hours every six months.
• Band 3 penalty pay rates proved a lever for trusts
to take junior doctors’ hours and New Deal
issues seriously.
• By August 2009 all doctors must be working no
more than 48 hours per week on average, which
means all posts must be in Band 1.
An explanation and flowchart of how to find out
which band you should be in, and how to reband
a post are on pages 4 & 5.
What do I do?
Your trust will wish to reband your post as soon as
possible if it is currently Band 2 or 3. Volunteer to
take part in this, as it is the only way to influence
any changes. You need not worry about taking a
pay cut as a result because your existing banding
payments will be protected (see below). Print out
the Approval to Change Band Form from the
Department of Health (DH) website and ensure it
is explicitly followed: http://www.dh.gov.uk/en/
Managingyourorganisation/Humanresources
andtraining/Modernisingpay/Juniordoctor
contracts/DH_4053873
How to design a compliant rota is too lengthy to
explain here but it is explained in the JDC’s guidance
Rota design made easy and the Junior doctors’
handbook – both free to BMA members. Also very
useful is a joint DH, JDC, and NHS Confederation
document available from the same DH weblink
Guidance on working patterns for junior doctors.
In-post pay protection
Pay protection applies to existing post-holders
if their rota is down-banded. If a post is downbanded while you are working that rota, then you
will receive pay protection for the duration of your
post. Although the banding supplement that the
post attracts will have changed, and future postholders may be paid according to this new
banding, your pay will be protected at the pay
band you received before the post was rebanded.
This in-post pay protection will apply for the
duration of the post, or for as long as it is more
favourable than the actual banding of the rota.
(Continued on page 6).
The rush to reband training posts explained
3
Which band should I be in?
How can they reband my post?
The key to knowing which is your
correct band, is to know how many
actual hours of work you do each
week. This varies for almost everyone
and rarely follows the exact rota you
have been given.
The JDC is aware of many recent instances where juniors have been told that their
rotas will change and that they will be paid less as a result, often with little or no
notice. This lack of notice is not allowed under your terms and conditions of service,
and because of pay protection, no one should find that their pay goes down when
bandings change.
You will need your monitoring data.
Many employers have their own diary
form, but we have developed a model
that is available on the BMA website.
Either way, keep careful records, which
will allow you to see what time you are
really finishing work and how long
your breaks or rest periods really are.
Now use the flow chart below. The
New Deal rest requirements are in table
1. This flow chart is for full-time
trainees. Flexible trainees should refer
to the contracts section of the BMA
website or the junior doctors’
handbook for 2008.
4
There are very specific rules about how a post can be rebanded. These are contained
in the Rebanding protocol available from the DH website.
A summary, taken directly from the proforma is listed in Table 2. The full proforma must
be signed off by all parties to indicate all steps have been followed. If not, then the
post has NOT been rebanded properly and the salary should remain at the previous
level. If there is any dispute an appeal can be lodged. The BMA has been successful in
the vast majority of the appeals that have taken place since the system was introduced
in 2000.
Please note, ‘you must approve the changes’, does not allow you to demand to stay in
Band 3 or a higher band than the proposed new rota but does allow you to ensure the
new rota is workable and agreed by those concerned. ‘Incoming post-holders’ means
anyone who knows they will be rotating into that post.
AskBMA can give additional information or clarification to members if required.
The rush to reband training posts explained
What to do if it has gone wrong
Table 2: The stages necessary to reband a training post
Stage
Evidence Required
Documentation
1a. Consult post-holders on
proposed changes and
obtain agreement of the
majority participating in
the working
arrangements
Approval of majority of
current/incoming post-holders
Template signed by trust
junior doctor representative
confirming agreement of
majority of current/incoming
post-holders
1b. Submit details of the new
working arrangements
to the action team (or
successor body) for
information and
invited comment
Full details of proposed
working arrangements and/or
rota summary (eg from DRS
or RotaWorks software)
Letter signed by action team
chair or delegated authority
confirming theoretical
compliance of working
arrangements
1c.
Full details of proposed
working arrangements
Comments of action team
Obtain agreement from
clinical tutor for
education purposes
Letter signed by dean or
delegated authority confirming
educational acceptability of
working arrangements
If exceptionally and because of the impracticality of full implementation of new working
arrangements* a trust wishes to offer future posts at an expected banding in advance of
actual monitoring, approval must be sought from the regional action team (or its equivalent)
in advance of making any such offer. Any offer made in these circumstances will be strictly
provisional, and must be confirmed by monitoring following the implementation of new
working arrangements.
Signed letter from trust giving
reasons for inability to fully
monitor before rebanding
Evidence of full or partial
testing/monitoring of
proposed arrangements
2.
Submit request for
provisional approval*
of working arrangements
to action team
3.
Monitoring of working
Completed monitoring returns This signed template
pattern and confirmation from 75% of doctors on rota (Meaning whole proforma
of banding
over full 2 week period
as explained above table)
Summary of monitoring results
Letter signed by action team
chair or delegated authority
authorising an offer of
provisional banding
* The protocol for the rebanding of posts states that provisional rebanding will
only be needed in rare circumstances, such as service reconfiguration or a merger
of employers. The employer must be able to demonstrate why it was impossible
to test/implement the rota in advance of rebanding.
‘They tell us it’s 2B but we never finish at 5’
‘There’s a week of nights followed by two
days off, it’s not enough’
Rotas are being changed up and down the country.
When done well, trainees, consultants and managers
are happy that the best balance has been struck
between training, quality of life and service need. At
its worst there seems to be no training, no one sees
their friends or family and yet the hospital complains
they can never find the right doctor when they want
them. There are ways in which you can challenge your
rota’s band – see the flow chart below.
What to do to get the best rota:
• juniors must be part of the team devising
their own rota, as imposed rotas are much more
likely lead to unhappiness
• all sides must be realistic
• New Deal and EWTD will mean there are fewer
junior doctor ‘hours’ available – something will
have to give
• training should be protected – it is what trainees
are meant to be doing
• if no one is getting rest – it will have to be a fullshift rota. Look at monitoring data/diary cards or
word of mouth. Can the rest requirements of an
on-call or partial shift be met? (summarised in
table 1, full explanations in the Junior doctors’
handbook)
• do you need all the tiers of cover you have (ie
FHO1, FHO2, ST1-2, ST3+)? Could one or more
tiers be merged?
• can other staff take some of the load (where
appropriate)? – nurse practitioners, physicians
assistants etc
• full-shift rotas with prospective cover need at least
ten people. They can nominally be done with eight
but they are very antisocial, often deliver poor
training and are consequently unpopular
• look ahead to 2009, even if you design an
intermediate rota until extra resources
become available.
What to do if you have been wrongly down-banded:
Ask yourselves these questions:
Same as it is presently paid
Different from how
it is presently paid
What band should this rota (as we work it) be in? Check
your facts – read the rules for each work pattern, ask the BMA
for advice if needed.
What did the last set of
monitoring show?
Was the rebanding protocol
followed correctly?
Yes
Enjoy the
job!
Inform medical staffing that the
rebanding process needs to be followed,
giving them a reminder copy if needed.
They say:
OK
You should be protected on your
previous salary until the proper
process has been followed
The rush to reband training posts explained
Agreed
with trust
Agreed
with juniors
No
No
Ask medical staffing to pay you the band you have
been monitored at, back dated to the last change
of rota/juniors or compliant monitoring.
They say:
No
Write a joint letter to the regional
action team equivalent and the
BMA (regional office)
Ask for
re-monitoring
OK
Enjoy the
job!
5
What about training?
One of the most common and entirely understandable fears is that the
reduction in hours will adversely affect training. The JDC has been making
this point repeatedly for years to government, the medical royal colleges
and the deaneries. Most recently this has been done through the JDC’s
representation on all the DH groups formed to respond to the 2009
changes. We continually impress upon the Departments of Health that the
need to ensure that there is the minimum impact on training time must
not be underestimated. Australia and many Scandinavian countries have
been training their doctors to high standards in under 48 hours a week
for years – we should be able to do this too.
The barriers include antiquated training methods, service load (a high
proportion of the workload in NHS hospitals is undertaken by doctors
in training), and targets amongst many other things . We must ensure
training is of a high quality and teaches all the skills required. A Specialty
Registrar running a clinic on their own may be learning how to cope,
but this may not enhance their clinical knowledge or benefit patient care.
Better supervision, maximising use of training opportunities and improved
workplace based assessments testing knowledge and skills needed to
perform our jobs will all help.
There are a variety of things that can be done if junior doctors have
concerns about adverse effects on training when rotas are changed. The
clinical tutor should be informed in the first instance but concerns about
training can also be raised with the regional specialty advisor or postgraduate
dean. Ultimately PMETB has the final responsibility for ensuring that junior
doctors’ training is of the required standard. Highlighting concerns about
training is always best done if all the junior doctors’ on a rota agree about
the problems and can suggest potential solutions. Regional Junior Doctors
Committees can usually provide additional advice and support.
Clinical tutors must take responsibility for ensuring that rotas with
reduced hours still provide adequate training. One of their key roles is
to approve redesigned junior doctor rotas: this is an essential mechanism
for protecting training time and is an essential part of the Approval to
Change band protocol, without which the band of a post cannot change.
Areas we are working on
Protecting training
As discussed above, the JDC has long been concerned about the impact
of the EWTD on delivery of high quality training. We have been supportive
of the medical royal colleges’ attempts at developing new ways of training
in fewer hours per week. We have also been researching through surveys
the extent of the impact on training of the drive to reduce hours and
collecting good practice examples where well-designed working patterns
have delivered good quality training. We hope to build on this work and
publish further information about innovative working patterns and
training during the coming months.
Compensatory rest
If junior doctors are awoken at night whilst on-call from home (e.g.
to provide telephone advice or attend to a patient in hospital or in the
community) then compensatory rest is mandatory under the EWTD. The
directive specifically forbids being paid in lieu of rest, but says little more
about how compensatory rest should be taken. We have been lobbying in
Europe to request amendments that clarify how this important entitlement
should be delivered but until that happens, the JDC believes that compensatory
rest should not normally be taken during time that is already scheduled as
time off. We also believe that it is very poor practice for rotas to include
prospective compensatory rest in order for them to be EWTD compliant.
Your employer may have its own policy on compensatory rest, but you
should check through your local representative that this has been
approved by the BMA.
6
The rush to reband training posts explained
Hospital at night project
The issue of who should remain in the hospital
and who can work on-call from home remains
fundamental to whether this concept can work.
The NHS does not have the manpower to continue
to support all the existing hospitals on the basis of
full shifts alone. Trusts will need to decide who they
actually need to be present, on-site, overnight and
who could be on-call from home. Doctors will have
to engage in those tasks that require medical training;
those other tasks will need to be moved to the
daytime or performed by others.
In 2003 the JDC and the Strategy Unit of the DH
worked together to decide what core functions within
a hospital needed medical staff out of hours. A large
amount of research was undertaken and a number of
pilots were carried out to uncover how night-time
cover could be trimmed down safely in order to release
more time during the day for junior doctors’ training.
This project developed into the ‘Hospital at Night’
initiative, and still has a large amount of success. The
JDC supports the original Hospital at Night (H@N)
policy concept, but is concerned that many schemes
set up under the H@N name do not follow best
practice. Some schemes put undue pressure on junior
doctors to cover single-handedly areas of medicine that
are outside their expertise and ability, endangering
patient safety and leaving junior doctors exposed to
liability when things go wrong. We would advise all
doctors working in a H@N scheme to check their
employer’s policy against national guidelines.
Accommodation
Those who are not compulsorily resident, but
on-call from home, will need to be accessible. For
juniors on rotations who live a significant distance
from their hospital this may require on-call rooms to
be made available for their use on a voluntary basis.
In addition, those on-call (either from home or
voluntarily resident) will need compensatory rest
if they are disturbed (see above).
Some trusts have reacted to the increasing
introduction of full-shift rotas by reducing or
re-designating their on-call accommodation. The
EWTD does not signal the end of the need for oncall rooms. Many doctors doing full-shift nights will
have opportunities to gain short periods of sleep
(naps). These ‘anchor sleeps’ have been shown
to significantly improve the performance of those
working nights and this, in turn, benefits patient
safety. Also there may be a need for voluntary
accommodation for those who live far from the
hospital. In addition, the Selby rail crash ruling
has shown the importance of staff being
adequately rested before driving home and we
believe on-call rooms should be available for
anyone who does not feel safe to drive.
The JDC opposes any attempts to introduce ‘aircraft
lounge’ style seating in place of on-call rooms. The
Terms and Conditions of Service & Negotiating
Subcommittee has constantly highlighted sleep
deprivation issues with all stakeholders and
supports the recent work by the Royal College of Physicians
on ‘Surviving the night shift’. We have also recently relaunched our ‘Where
are you sleeping tonight?’ campaign to raise awareness of the issues.
Who to turn to/Where to get help
If you have exhausted the avenues outlined in ‘What to do if it has gone
wrong’ (see pages 4 & 5) external help is required.
For BMA members the first port of call remains askBMA on 0870 60 60 828 or
askBMA@bma.org.uk and http://www.bma.org.uk/ap.nsf/Content/Hub
EmploymentandContracts .
The JDC national office email address is info.jdc@bma.org.uk
Do not forget the deaneries. They may be able to help with poor rota
decisions, particularly where training has been compromised.
Lastly, get involved – attend a regional meeting, come to national JDC
or this year’s conference. These decisions affect your future.
If you would like to be more involved, email info.jdc@bma.org.uk and
we will contact you to explain how.
Websites
http://www.bma.org.uk – details of regional offices and the latest news
updates and guidance.
http://www.dh.gov.uk/en/Managingyourorganisation/Humanresourcesa
ndtraining/Modernisingpay/Juniordoctorcontracts/DH_4053873 – copies
of virtually all DH documents referred to in this paper, downloadable as PDFs.
These include:
•
•
•
•
•
Protocol for rebanding training grade posts
Guidance on working patterns for junior doctors
Terms and conditions for hospital doctors
The New Deal 1991
HSC 2000/036 – Living and working conditions for hospital doctors
in training – circular and guidance.
http://www.healthcareworkforce.nhs.uk/workingtimedirective.html
for information from NHS National Workforce Projects on the EWTD.
The rush to reband training posts explained
References
1.
The New Deal: NHS Management Executive – Junior
Doctors (1991) The New Deal. London: Department
of Health.
2. Terms and Conditions of Service for Hospital Medical
and Dental Staff and Doctors in Public Health
Medicine and the Community Health Service,
Department of Health, July 2007
3. The EWTD: Council Directive 93/104/EC. Official Journal
of the European Community 1993; L307:18-24.
4. The SiMAP ruling: Judgement of 3 October 2000:
Case C-303/98 Sindicato de Medicos de Asistencia
Publica (SIMAP) v Conselleria de Sanidad.
5. The EWTD Amending Directive: Directive 2000/34/EC
of the European Parliament and Council. Official
Journal of the European Community 2000;L195:41-45.
6. The Jaeger case: Opinion of Advocate General RuizJarabo in case C-151/02, Landeshauptstadt Kiel v
Norbert Jaeger.
7. Department of Health (2000) HSC 2000/031
A General guide to the new pay system. London:
Department of Health.
8. Department of Health (2002) Protocol for the rebanding of training grade posts. London:
Department of Health.
9. Department of Health (2000). Junior Doctors’
Hours – Monitoring Guidance.
10. Judgement in case of Selby rail crash, Crown v
Gary Hart 13/12/03, Leeds Crown Court.
11. Designing safer rotas in the 48 hour week,
Nicholas Horrocks and Roy Pounder, Royal
College of Physicians. September 2006.
12. Working the night shift, Nicholas Horrocks and
Roy Pounder, Royal College of Physicians. 2006
Contributors
This guidance was produced by the 2007/08 JDC
Terms & Conditions of Service & Negotiating
Subcommittee:
• Andrew O’Brien (Chairman, JDC TCS & N
Subcommittee)
• Andrew Rowland (Deputy Chairman,
JDC TCS & N Subcommittee)
• Ben Carrick
• Shree Datta
• Debs White
• Tim Crocker-Buque (Medical Students
Committee representative)
• Ram Moorthy (JDC Chairman)
• Eleanor Draeger (JDC Vice Chair)
• Sarah McCarthy (Industrial Relations Officer)
• Kevin McFadden (Senior IRO)
• Mirembe Wells (Senior Policy Executive)
• Susannah Gray (Executive Officer)
• with thanks to Andy Thornley (JDC Education
and Training Subcommittee)
7
For updates and further information www.bma.org.uk
PLEASE KEEP THIS GUIDE FOR FUTURE REFERENCE
Junior Doctors Committee, BMA House, Tavistock Square, London, WC1H 9JP
www.bma.org.uk
April 2008