Consultant contract in England
The following questions and answers have been put together in response to
the large number of enquiries we have received about the consultant
contract. If you can’t find an answer to your question in this list, please
contact the CC secretariat at info.cc@bma.org.uk who will be pleased to
help you.
Q1. Under the 2003 consultant contract how do I calculate my seniority?
A. Seniority is the sum of the number of whole years you have completed as
a NHS consultant, plus the point on the salary scale (on a scale of 1-5)
you received when you were appointed as a consultant. You may also be
credited with additional seniority in recognition of non-NHS consultantlevel experience or flexible training. Recognition of non-NHS consultantlevel service is a matter to be decided locally.
In addition:

Years worked as a part-time consultant still count as full years of
service for the purpose of calculating seniority.

Previous locum service should be counted towards seniority where the
locum was equivalent to a substantive post.

Both paid and unpaid leave for maternity or sickness count towards
seniority.

Service during sabbatical leave counts towards seniority.
Q2. How is on-call work paid for?
A. On call supplements reward you for being available on call. Actual
emergency work done while on call will be assessed and remunerated as part
of your programmed activities (PAs). A consultant currently working in a
high intensity post can expect one or more of his/her ten PAs to be
allocated to emergency work.
Q3. What has happened to payments for domiciliary visits?
A. The contract offers a number of options for the way that DVs and
category 2 work are contracted for.
(i) The consultant may negotiate that the work is part of the working week,
and through the job planning process include these in the programmed
activities. Under these circumstances, the Trust would be entitled to
retain the fee.
(ii) Where the volume of work causes more than a minimal disruption to
other NHS duties, and where it is not the wish of either the consultant or
the employer that the work is incorporated into PAs, the work can be done
outwith contracted time for the NHS and the fee can be paid as currently.
This would not preclude flexible arrangements, ie that NHS work could be
displaced on an ad-hoc basis, subject to agreement between employer and
consultant that this flexibility could apply and with no disadvantage at
all to NHS patients.
(iii) Where the work involves minimal disruption to other NHS duties, the
consultant may seek to agree in the job plan review that they occur within
NHS contracted time and the fee is collected as currently.
Family planning
Q4. I undertake family planning work whilst working for the NHS. I have
been paid an additional fee for this work in the past. My new job plan now
includes this work as part of my Programmed Activities. I thought I would
continue to receive a fee as usual but my manager tells me fees may no
longer be retained and any fees I have been paid since the date I was
placed on the new contract may be netted off my back pay. Is my manager
correct?
A. From the description you give, your manager is correct. Family planning
work can, by agreement, reasonably be undertaken during Programmed
Activities under the new contract (subject to the proviso that a consultant
cannot be compelled to do this work, as set out in HC(PC)(76)20). If family
planning is included in PAs then payment is via the normal salary for
contracted PAs. No additional fee will be due to the consultant, unless the
employer expressly agrees otherwise.
The new contract establishes the general principle that consultants will
not be paid twice for the same period of time. Work that is undertaken
during PAs will not attract payment or retention of additional fees, unless
agreed otherwise by the employer (see below). If a consultant is paid a fee
for family planning work or any other Fee Paying Services that are
undertaken during PAs, the default position is that the fee shall be
remitted to the employing organisation. Schedule 11 of the Terms and
Conditions refers.
However, where the employer agrees that Fee Paying Services, including
family planning work, carried out during NHS time cause minimal disruption
to NHS work, there is provision in the contract for employing organisations
to agree to allow the consultant to retain the fee. Schedule 11.2 refers.
In the absence of any agreement that the consultant can retain the fee, the
fee shall be remitted to the employer.
Consultants can also retain any fee that is paid for Fee Paying Services
that are carried out in the consultant’s own time, or during annual or
unpaid leave.
In respect of the back pay period, those fees already paid for family
planning and other Fee Paying Services (domiciliary visits for example)
should not be netted off back pay unless those services are incorporated
into the agreed job plan that applies during the back pay period. There
should also be no netting off from back pay if those fee paying services
were undertaken during a consultant’s own time or were previously agreed as
being minimally disruptive to NHS work.
It continues to be the case that a consultant does not have to undertake
family planning work, if they have ethical or other objections to doing so.
If another member of the surgical team undertakes the work then they remain
able to receive the fee as per their existing TCS.
Locums
Q5. How will the 2003 contract apply to locums?
A. All elements of the 2003 contract will apply to locums. However, with
respect to pay, the following provisions apply:

Locum consultants who have not at any time held a substantive
consultant post will be paid at the first point on the salary scale,
unless they have consultant-level experience, in which case trusts
may credit them with the appropriate amount of seniority.

Locum consultants who hold a substantive consultant post shall be
remunerated at a rate consistent with their current pay threshold
including distinction awards, discretionary points or CEAs.

Locum consultants who do not currently hold, but have previously held,
a substantive consultant post (e.g. retired consultants) shall be
remunerated at a rate consistent with their most recent pay threshold
as a substantive consultant or, their seniority.

Previous locum service should be counted towards seniority where the
locum was equivalent to a substantive post.
Locums will also be eligible for pay progression. On completion of 12
months locum service (continuous or cumulative) the trust will assess
whether or not the locum has fulfilled the pay progression criteria for the
year, taking into account where necessary locum service carried out in
other trusts.
Q6. In my trust I have noticed that locum consultants are paid on a
different payscale (MC73) to substantively employed consultants. The MC73
pay pathway does not look like either the MC51 or MC72 scales but the
figures appear to be drawn from these scales. Why is there a different
payscale for locum consultants?
A. When the consultant contract was introduced in 2003 it was agreed that
MC51 to MC71 and MC72 00 to 19 should be the designated paycodes for
consultants first appointed before 31 October 20 and on or after 31 October
2003 respectively.
Payroll providers also made available the MC73 paycode so that, if they so
chose, employers could distinguish by paycode those consultants appointed
substantively and those appointed on a local basis. However, MC73 is not a
payscale like MC51 or MC72, where there is a clear progression path through
the thresholds. It is simply a collection of pay values which includes
every possible threshold point from both the MC51 and MC72 scales,
including transitional points, upon which a locum consultant could be
placed.
In response to employer feedback we intend to include the MC73 pay values
in Pay Circular (Medical & Dental) 1/2006.
As locum consultant appointments are not permanent posts and tenure is as
agreed on appointment, i.e. for a maximum of six months and then in
exceptional circumstances up to twelve months, we would expect a
reassessment of basic salary to take place with each new locum appointment.
Please see Schedule 22 of the Terms and Conditions for details.
In addition, Schedule 22.7 provides for the recognition of continuous or
cumulative locum service for pay progression purposes. When pay progression
is awarded, a reassessment of basic salary and subsequent repositioning to
a different value on the MC73 paycode will be required. This may occur part
way through a locum appointment.
Q7. I am still unsure where I should place a locum consultant on the MC73
scale.
A. To determine where on MC73 a locum consultant should be appointed to,
you should work out the appropriate basic salary as provided for by
Schedule 22.4 to 22.6 of the Terms and Conditions.
Broadly 22.4 refers to a locum consultant who has not previously held a substantive
consultant post i.e. is newly appointed whilst
22.5 refers to those who hold a substantive consultant post, i.e. existing
consultants; and
22.6 applies to those who do not currently hold a substantive consultant
post e.g. retired consultants.
Once you have worked out the basic salary, you can then appoint to the
correct MC73 pay value.
A couple of examples are below:
Q: A Consultant is appointed to their first NHS post with 4 years overseas
service, where would they be plotted?
A: They would be aligned to MC72:04, but would actually start on MC73:09.
Q: A consultant is appointed with existing NHS service of 6 years, where
they would be plotted?
A: They would be aligned to MC56:00, but they would be plotted on the Locum
scale as MC73:08.
Q8. Can locum consultants claim rights under the Fixed Term Workers
Regulations?
A. t is unlikely that locum consultants could claim permanent employee
rights under regulation 8 of the fixed term workers regulations. The AofC
Regs set out requirements for all standard consultants appointments and
includes provisions relating to “exempt appointments”. An exempt
appointment is
“a person whose appointment in a post is to be for an initial period not
exceeding 6 months: 1. pending the appointment of a permanent postholder;
2. where the permanent holder of that post is unable to carry out his
duties by reason of illness or because of other absence; or
3. where the Authority considers for some other reason that such an
appointment is necessary,
and in each case in respect of whom any further period of employment in
that post is to be for a period not exceeding 6 months, and to be subject
to prior consultation with the relevant college and to the satisfactory
performance of the duties of the post during the initial period”.
(Regulation 5c AofC Regs)
A locum consultant appointment therefore should not last beyond 1 year
(hence the reference to a statutory limitation). After this period the
practitioner should be subject to the full requirements of the AofC Regs.
In essence, the employer (and the practitioner) are in breach of the AofC
Regs after a one year in post. For a claim to be successful the employee
would have to prove that such a breech had occurred. However employers can
override Regulation 8 if the use of a fixed term contract can be
objectively justified. As a result employers could argue that they can
provide objective justification for continuing with a fixed term contract
(on the basis that the appointment requirements set out in the AofC Regs
were required to protect public safety). In fact, in most cases the
contract would be terminated with the locum consultant in order to comply
with AofC Regs and then either be advertised as the permanent position or
re-advertised for another locum consultant.
The remainder of the FTW Regs, and particularly Regulations 3 which
stipulates that fixed term workers are entitled to receive no less
favourable treatment than a holder of a permanent position, will apply to
locum consultants.
If the locum consultant is employed by a foundation trust, which are not
governed by AofC Regs then it may be possible to make a claim depending on
there terms and conditions.
Clinical excellence awards, discretionary points and distinction awards
Q9. I want to know more about Clinical Excellence Awards.
A. You can find out more about the schemes here.
Working hours, working week, management control, job plans
Q10. What about the European Working Time Directive?
A. This legislation applies to all consultants. The contract itself
stipulates that the number of programmed activities undertaken must not
exceed the maximum number of hours permitted under the EWTD. However, if
you have signed a waiver or ‘opt-out’ you will still be able to work in
excess of 48 hours if you wish and be paid for it.
See also question 34 (link to Q 34).
Q11. Could you clarify the arrangements for out of hours working with
regard to our obligations to work at these times and what payment we would
be entitled to?
A. The scheduling of non-emergency work after 7pm at night and any time at
weekends can only take place by agreement with the consultant i.e it will
be voluntary. Non-emergency work can be scheduled as programmed activities
(PAs) as they would in normal hours, but from April 2004 each PA will only
last 3 hours rather than the standard 4 hours.
Emergency work undertaken out of hours will be recognised in programmed
activities and paid accordingly (up to a maximum of 1 PA until 31 March
2005) i.e. during job planning, the average amount of this type of on-call
work will be recognised as a certain number of PAs. PAs worked during the
out of hours period are only 3 hours long.
The definition of ‘non-emergency work’ for these purposes includes the
regular programmed work of consultants whose specialty by its nature
involves dealing routinely with emergency cases e.g. A&E consultants.
Q12. What if I cannot agree a job plan with my manager, can the trust
impose one on me?
A.The terms and conditions of service explicitly states that job planning
will be based on a partnership approach and that scheduling of commitments
should be by agreement. The BMA’s local offices and local negotiating
committees will ensure that consultants are supported in the job-planning
process. However, if attempts to reach agreement fail, there will be
referral initially to the medical director and subsequently to an appeals
panel. The appeals panel will consist of three members: one appointed by
the trust, one by the consultant and one from a list agreed between the BMA
and the strategic health authority.
Q13. How will the appeal panels work?
A.We have agreed the composition of the appeals panels and how they will
operate in practice – More information can be found here.
Q14. Why does the trust board have a veto over any decision made by the
appeal panel?
A.It should be noted that the heads of agreement explicitly states that the
trust board would normally accept the decision of the appeal panel. However,
it is also a term of the 2003 contract that the trust board retains the
right to make the final decision. If your trust acts unreasonably in
choosing to overrule an appeal panel, then it is possible that you may have
legal remedies against your employer, but you cannot force your employer to
accept an appeal panel decision. At the root of this is parties’ freedom to
contract: no one can force you to work for a particular employer, but nor
can an employer be forced to employ you on particular terms.
Q15. Currently, I do quite a lot of work from home, preparing for teaching
and dictating letters. Do I have to stay on site all the time?
A. No. This has been clarified again in the terms and conditions of service.
There is nothing to stop you reaching agreement on reasonable flexibility
about where you do your work. It would be extremely shortsighted of any
trust to try to insist that all work must be done on site or that
consultants must ‘clock in and clock out’. However, you do need to make a
proper estimate of the time you spend on this type of activity because it
is now included in the PAs for direct clinical care, and will be paid for.
Part time consultants
Q16. What does the 2003 contract offer to part timers?
A. An agreement was reached on how the 2003 contract should apply to parttime workers, and you should refer to ‘Part-time and flexible working for
consultants’, published in September 2003, for more information.

The 2003 contract offers advantages to part timers on a number of
fronts.

The more tightly defined and limited working week will help part time
consultants who currently work many hours unpaid for a lower salary.
You should be able to contract for precisely the number of PAs that
you want and limit your commitment to those PAs.

Part timers transferring to the 2003 contract have a choice of
transferring to the 2003 contract based on their current number of
NHDs, or based on the number of PAs nearest to their current hours.
They will only have to work increased hours by agreement and this
will be accompanied by the award of additional PAs.

The 2003 contract recognises that part-timers need to devote
proportionately more of their time to supporting professional
activities, for example due to the need to participate to the same
extent as full timers in CPD. It has been agreed therefore that, for
example, for a 6PA contract, 2 PAs need to be devoted to supporting
activities, a ratio of 2:1 compared to 3:1 for a full timer.

Where a part time consultant participates in an on-call rota on the
same basis as a full-time colleague, they will receive the full value
of an on-call availability supplement.

Part-timers might also benefit from being credited with additional
seniority

There is also scope for annualised hours, which will help those
consultants who, for example, want to avoid working in the school
holidays.
Q17. I am a maximum part timer on the pre 2003 contract and would like to
transfer – would I be treated differently than full time consultants?
A. No, the arrangements would be the same as for full time consultants
transferring to the 2003 contract (assuming there is no backdated pay).
Private practice issues
Q18. Do I have to work an extra session before undertaking private
practice?
A. No. There is no requirement under the 2003 contract for you to work more
than 40 hours if you want to do private practice. However, one of the
criteria for achieving pay progression is that you accept an extra paid
programmed activity, if offered, before doing private work. But you should
remember that:

If you are already doing 11 PAs as a full timer, you don’t have to do
any more;

11 PAs could easily be less than 44 hours if you work in premium
time;

You can decline any offer and do your private work, but this will
risk your pay progression;

Additional PAs must be offered to all consultants in your specialty
and if your colleagues take them up, there is no impact on your pay
progression;

The requirement for former maximum part-time consultants to offer the
extra PA is phased in during a transitional phase.

Before agreeing to take on the 2003 contract, you should clarify with
your employer how they intend to deal with this issue. It is possible
that they will not want to offer any extra PAs (they might not be
able to afford them), or might offer a small number across a
department. Bearing this in mind, you and your colleagues might like
to agree amongst yourselves an arrangement for accepting any extra
PAs the trust offers. For example, if one extra PA is offered amongst
four consultants, you could take it in turn to undertake the extra
paid work.
Remember that if you are offered an extra PA and decide to take it up, you
have the right to notice of 6 months if you have to re-arrange other
commitments (3 months if you do not). If you agree to undertake an
additional PA, this agreement is not permanent but can be reviewed at the
request of either party as part of the job planning process.
The BMA believes that part-time workers should work the extra PA on a basis
pro-rata to their basic commitment. The Department of Health however does
not agree, and we would be very interested in taking forward any cases on
behalf of part-time consultants whose trusts are insisting that a whole
extra PA is offered.
In this area, there is some scope for agreeing how the contract will be
implemented locally. In such circumstances, the issue would be better dealt
with by reaching a collective agreement with the employer, via the local
negotiating committee.
Q19. Isn’t it illegal for consultants to be required to do extra work for
the NHS before doing what they wish in their own time? No other group of
NHS workers has this required of them!
A. The requirement to offer an extra programmed activity to the NHS before
undertaking private work is unlikely to be illegal. It is a restriction,
but will be a valid restriction if it is reasonable. The restraint must be
capable of justification on the basis that it satisfies a legitimate
interest of the employing Trust, and is reasonable in the interests of the
public. A Trust has an interest in consultants devoting substantially the
whole of their professional time to NHS duties. Further, it is clearly in
the public interest for consultants to do an extra PA for the NHS if there
is a need for that extra work to be carried out.
It should be noted that NHS Trusts can employ staff on such terms and
conditions as they think fit. Trusts do not therefore have to offer this
term. This also means that if a Trust felt it was necessary to impose a
similar obligation on other NHS workers, then it could do so.
Q20. Can I do a private practice session between 9am-5pm?
A. Yes. There is nothing in the contract that rules this out. A new code of
practice on NHS and private work has been developed as part of the contract
negotiations and put in place. The principles governing the new rules are
included in the terms and conditions of service.
There is no doubt that some trust managers are hostile to the idea that
consultants may be working elsewhere during the day and want to deploy them
inside their own trust. However if they want to propose a change to current
working arrangements, this must be done through job-planning, and they will
need to be able to show that they have the staff and other facilities
available. Remember that if you are offered an extra PA and decide to take
it up, you have the right to notice of 6 months if you have to re-arrange
other commitments (3 months if you do not). They cannot contract with you
for more than 10 four hour PAs without your agreement (except where
recognising your on-call work would have meant a reduction in your other
work). It has also been agreed that the scheduling of work is by agreement
and can be flexible. Once you have fulfilled your contractual obligation of
e.g. 10 PAs, you are free to undertake private practice. Remember, if you
undertake on-call or scheduled work outside 9am-5pm, the PAs allocated to
that will mean you have spare daytime capacity on a weekly basis.
Q21. If I work 40 hours for the NHS does the European Working Time
Directive mean I can only do 8 hours private practice?
A. No, the European Working Time Directive is health and safety legislation
aimed at protecting the employee from excessive demands made by the
employer. Private practice when self-employed is outside of the WTD and
does not count towards the 48 hour limit. There is no restriction on the
hours you work in private practice, provided always that you fulfil your
professional obligation to be fit for work.
Q22. Does the 2003 contract mean that I cannot do a private practice
session if I am on call for the NHS?
A. A key principle of the new code of conduct on private practice is that
where there is or could be a conflict of interest, programmed NHS
commitments should take precedence over private work. The code also sets
out that consultants should ensure ‘that private commitments do not prevent
them from being able to attend a NHS emergency while they are on call for
the NHS, including any emergency cover that they agree to provide for NHS
colleagues. In particular, private commitments that prevent an immediate
response should not be undertaken at these times’.
However, the code additionally says that ‘there will be circumstances in
which consultants may reasonably provide emergency treatment for private
patients during time when they are scheduled to be working or are on call
for the NHS’ and that there may be circumstances where some private
practice can be undertaken alongside a consultant’s scheduled NHS duties,
provided that the trust is satisfied that there will be no disruption to
NHS services.
Q23. It looks as if current consultants on maximum part time contracts will
be forced to work an extra session. How can you justify this?
A. A Most consultants - both whole time and maximum part time - are working
way beyond their current contract for the NHS and they are not being paid
for it. Those on maximum part time contracts are currently sacrificing nine
per cent of their salary even though they work more than full time for the
NHS.
We have successfully negotiated away the ten per cent rule and the maximum
part time contract with its pay penalty.
Under the 2003 contract, consultants will be paid for extra sessions beyond
40 hours.
Consultants will not be forced to take on extra sessions. Trusts will have
to offer extra sessions, with plenty of notice, to all consultants suitable
for the extra work. They will not single out those consultants who already
practise privately. Only if the trust has enough funds, facilities, nursing
staff and beds to run additional clinics and operating sessions, will the
question of extra sessions arise.
Even then, consultants have a choice. If they decide that they wish to
retain the maximum amount of free time for their private practice, they can
decline the extra session. The only penalty they would suffer is that they
would not progress through the pay threshold that year. As they will be
moving to a full time salary, their NHS salary will still be higher than it
is now.
Q24. I am a maximum part-timer. How could I transfer to the 2003 contract?
A. Some current maximum part-timers (MPTs) are concerned that they will
lose out if they transfer to the current contract because they will not
benefit straight away from the enhanced salary offered in the 2003 contract.
However, there are alternative ways that maximum part-timers could move
over:

We know that most MPT consultants work around 47 hours for the NHS
each week. Therefore, you could simply take a contract based on the
number of PAs you actually work for the NHS and get paid for them at
a higher rate than you currently do. As you would be working over 11
PAs, there would be no threat to pay progression if you did not do
any extra NHS work and did private work;

An MPT consultant could opt to take on a 10 PA contract, work the
basic commitment, not take up an extra PA when offered and do
unlimited private work. You would remain on the new salary that you
transfer on, which would be higher than your old one. However, you
may not be eligible for pay progression if you decide to take this
course of action;

With agreement from the trust, an MPT could transfer over on the
number of hours currently paid for. The current minimum commitment is
10 notional half days or 35 hours. As an MPT consultant, with
agreement you could take up an 8 or 9 programmed activity contract,
offer to do an extra programmed activity and do unlimited private
practice.
Q25. I am considering working for an independent provider of NHS services,
what issues should I be aware of?
A. The issues surrounding consultants working in independent treatment
centres are discussed in detail in the publication “Working in the new
NHS”
Pensions
Q26. What work is pensionable?
A. All PAs up to a maximum of 10 per week are pensionable as are
domiciliary visits fees, discretionary points, distinction awards, clinical
excellence awards, London Weighting and on-call availability supplements.
Mental Health Officer status will be unaffected.
Q27. Are PAs in excess of 10 pensionable?
A. No.
Other
Q28. Cover for colleagues absent through sickness
Before the introduction of the 2003 contract, consultants in our Trust
would normally automatically cover for a colleague's absence through
sickness. Some of those who have taken up the 2003 contract are now
questioning whether they have any obligation to continue to work in this
way. There is acceptance of the need to cover the emergency aspect of work
long enough for the Trust to employ a locum (perhaps 48 hours) but beyond
this, some are of the view that these additional duties are not part of a
consultant's contracted work and should be separately remunerated. As the
work covered is not specified in their agreed job plans, these consultants
are now asking for payment at an enhanced additional rate, equivalent to
agency locum rates of pay. How should we deal with the requests for
additional payment?
A Schedule 2.3 of the Terms and Conditions (T&Cs) contains a specific
obligation that consultants are expected “…in the normal run of their
duties to deputise for absent consultant or associate specialist colleagues
so far as is practicable, even if on occasions this would involve
interchange of staff within the same employing organisation. This does not
include deputising where associate specialists are on a rota with doctors
in training.”
This is not a new requirement. It is expressed in almost identical terms to
the obligation that arises from Paragraph 106 of the ‘old’ contract T&Cs.
There is, therefore, a continuing general obligation to provide cover where
practicable.
Some Trusts have put in place a policy to cover this matter, an approach we
would endorse. In the absence of such a policy we would offer the following
guidance.
Employers and consultants are encouraged to come to agreement locally on
what is deemed to be practicable, what the proposed cover entails and
establish that the work is of a suitable nature to be covered by the
consultant. In establishing suitability, due regard must be given to a
doctor’s duty to recognise and work within the limits of their professional
competence. It may be necessary to agree re-arranged duties for one or more
consultants in the short term in order to provide adequate cover.
In terms of remuneration, obviously it is not possible to schedule PAs for
unexpected absences into a prospective job plan. There are a number of ways
of addressing the issue of compensation for additional work. The 2003
contract is sufficiently flexible that the length of the working day (or
week) is not expected to be the same week in, week out. It may be possible
to re-arrange, by agreement, duties flexibly so that a consultant providing
additional cover for an absent colleague can take time off in lieu later.
Duties may be re-arranged temporarily so that, for example, extra DCC PAs
are worked to cover the absence, with SPA PAs time shifted to be taken at a
later, more convenient date perhaps in lieu of DCC PAs at that time.
Alternatively, or in addition, thought may be given to a temporary
reallocation of specified responsibilities (with enhanced supervision as
necessary) to an associate specialist or specialist registrar.
In the longer term, the question of additional remuneration may arise,
including in respect of On-Call Availability Supplement (if the rota
frequency has increased) and PAs for on-call work undertaken. These may
need to be re-calculated. The formula for calculation and payment is that
contained within the T&Cs. Schedule 16.4 of the 2003 contract T&Cs
anticipates changes in rota frequency, which may require a change in OnCall Availability Supplement. Schedule 5 deals with recognition for work
arising from on-call duties, while Schedule 13 deals with payment for
additional PAs.
In summary, cover for an unexpected absence is not ‘extra-contractual’ but
is a contractual obligation for consultants, whether on the ‘old’ contract
or the 2003 contract. The practicability of providing such cover should be
determined locally by agreement. Compensation for the additional work
should be in accordance with the applicable contract.
Q29. What is the obligation of consultants to cover for colleagues who are
unexpectedly absent, for example due to sickness?
A. There has been a long-standing requirement for consultants to cover for
their colleagues ‘so far as is practicable’. The obligation is set out in
the ‘old’ terms and conditions of service (at paragraph 106) and is
repeated in schedule 2 of the 2003 TCS. Both sets of TCS go on to state
that, where cover is not practicable, the consultant should bring the
matter to the employer’s attention and the employer then has the
responsibility to provide a locum.
The key questions here are determining what is meant by ‘practicable’ and
what services are essential to cover in an already overstretched NHS. This
may well differ between trusts, departments and individual cases, but many
employers find it helpful to agree in advance a policy with their
consultants over what will be expected where there is an absence. The most
important factor in any such agreement will be the expected length of
period of cover. As these instances are unplanned and unexpected the period
of cover agreed should be short especially where the rota frequency is high
and/or the volume of work done on call is significant (over 0.5 PA per 24
hour period on call). For example, some employers and consultants have
demonstrated good practice by agreeing that cover will be provided for a 72
hour period after which the employer will provide a locum. The locum might
be from outside the trust, or there could be internal cover. This gives
time to maintain essential services but balances the extra strain on
already stretched resources. Longer periods can be covered using agreement
via the Job Planning process and PAs allocations.
Employers should also look at alternative means of dealing with consultant
absence. For example, could an associate specialist or specialist registrar
who normally works alongside a consultant in a clinic continue to run that
clinic with the supervision of an on-site consultant?
It is important to emphasise that on many occasions the workload will not
be able to be covered within existing working hours and thus appropriate
remuneration in terms of PAs needs to be agreed.
Bank and Public Holiday working
Q30. How should we pay our consultants who work on public holidays?
A.The Definitions set out in the preface to the Terms and Conditions –
Consultants (England) 2003 (T&Cs) state (page 3) that work on a public
holiday counts as work in Premium time. This affirms that such work counts
the same as that undertaken on a weekend or outside of 7am to 7pm Monday to
Friday.
Schedule 7 of the T&Cs sets out the compensation arrangements for scheduled
and unpredictable work undertaken during such time (see 7.2 in particular).
This draws no distinction between the reward for Public holidays and the
reward for other periods or days that meet the definition of Premium time.
Q31. Are consultants obliged to work on bank holidays
A.The Definitions set out in the preface to the Terms and Conditions –
Consultants (England) 2003 (T&Cs) state (page 3) that work on a public
holiday counts as work in Premium time. Schedule 3, para 6 of the TCS
confirms that non-emergency work after 7pm and before 7am during weekdays
or at weekends (premium time work) will only be scheduled by mutual
agreement. Therefore a bank and public holiday working should only be
scheduled by mutual agreement.
Q32. Where can I find guidance about non contractual entitlements, such as
secretarial support?
A. Information on supporting resources such as secretarial support and
office space is available from the specialty associations and colleges.
Some Royal Colleges also provide specialty-specific workload guidance, e.g.
number of patients to be seen in clinics.
Q33. What advice can you give a consultant considering taking on waiting
list initiative work?
A. Consultants should be advised that if they accept payment for a WLI done
during what would otherwise be working time, they have a duty to make up
that duty at another time. They should not expose themselves to risk by
doing WLI while on call, although they may find themselves responsible for
supervising SAS doctors doing such work. All such problems to be taken up
with local clinical management. The BMA also believes strongly in pay
parity for consultants and LNCs should seek to negotiate local rates on
this basis.
Q34. I don’t work on Mondays and I’m not sure whether I should be entitled
to public holidays in lieu given that I miss some. What is the right way to
handle this?
Increasing numbers of full time consultants work different patterns which
sometimes mean that they are not scheduled to work on a public holiday and
want to know whether they are entitled to take a day off given that they
have missed a public holiday. Similarly, part time consultants are entitled
to the same leave, pro rata, as full timers but might also find that they
aren’t scheduled to work on a public holiday. It can be difficult to work
out how they should be compensated for missing public holidays.
It would not be fair for the full timer for different hours simply to take
a day off in lieu because they may take a day off when they are scheduled
to work 3 or more PAs and would, therefore, be taking more leave than a
full time consultant who took leave on a public holiday when he/she was
scheduled to carry out 2 PAs.
A fair way of dealing with this is to establish the number of PAs of leave
that a consultant has in a year.
For example, a consultant on a 10 PA
contract who has been working as a consultants for less than seven years
has six weeks of leave a year. That consultant will also be entitled to
eight public holidays and two statutory holidays every year – ten days on
top of the six weeks. Here is how the PA entitlement should be calculated:
10PAs per week/5 days per week = 2PAs per day
6 weeks x 5 days x 2 PAs = 60 PAs for the annual leave
Ten days x 2 PAs = 20 PAs for the public holidays and stat days
60 + 20 = 80 PAs leave per year.
Leave can then be calculated on an annualised basis and everyone will have
the same amount of time off. The figures can be amended pro rata for part
timers.
For example, if full timers are paid an annual leave entitlement of 80PAs,
a part-time worker who works half the full-time hours over Tuesdays,
Wednesdays and Thursdays is entitled to 40PAs.