This guidance outlines your rights and responsibilities if you are approached by your NHS board employer to assist in providing cover during any period of resident doctor strike action in Scotland.

Providing cover

Ensuring patient safety is your NHS board employer’s responsibility

‘Full withdrawal of labour’ means that when taking strike action resident doctors will not be providing any service, including emergency cover on strike days. In this situation, the responsibility to ensure continuity of safe patient care lies with your NHS board employer.

Health boards will be aware of the potential for industrial action. We have provided them with notice in line with our legal obligations. This means that they will have sufficient time to prepare for the strike days (for example, the cancelling of elective work). They may start discussions soon with LNCs as to how services will be covered. It is also possible that boards may start to approach individual doctors regarding employer plans for providing appropriate services including emergency cover.

You are not contractually obliged to provide cover for resident doctors on strike

It is the employer’s responsibility to ensure that the service gaps created by resident doctors taking strike action are covered in advance. Your NHS board employer is likely to seek your agreement, either individually, departmentally, or collectively via your LNC, regarding any arrangements to cover for absent resident doctor colleagues. 

Your contract and job plan cannot be suspended

However, you have a contract and job plan and these cannot be waived or suspended, even for a short period, without your explicit agreement. The law around industrial action is the same across the UK. I, Guidance on industrial action from Capsticks, the NHS Employers’ own legal advisors in England, has acknowledged that cover is extra-contractual and can be agreed to or refused.

 ‘Acting down’ to cover striking resident doctor colleagues during the day or being ‘resident on-call’ to cover absences created by them taking strike action overnight or at weekends is not part of your contractual obligations under the terms and conditions and any such re-deployment require your explicit agreement. The requirement for such cover is entirely foreseeable, so employers cannot use any provision of short notice absence cover for these gaps.

You should be paid appropriately if you do provide cover

If you do agree to provide any additional work to cover gaps, you should also expect to be paid appropriately and are advised to have explicit, written agreement on the applicable rate before agreeing to provide the cover.

In line with your obligations under the GMC’s Good Medical Practice you can reasonably be expected to provide “emergency” or “life and limb” cover,  where it is practicable for you to do so. However, it is essential that this is done safely, both for you and the patients in your department.  

Safe working

Any agreement to provide cover must prioritise safe working

If you are being asked to act down, and/or essentially become resident on-call during resident doctor strike action, it is vital that this is done safely both for you and the patients in your department. It is your employer’s responsibility to ensure safe staffing and you cannot be expected to fulfil the duties of multiple people at the same time.

If you are already scheduled to work on a strike day, you are required to fulfil your own contractual commitments, so any agreement to cover different work would need to make it clear that your employer was stepping down that requirement in preference to you performing different duties or, if not, what arrangements will be made for you to fulfil that contractual (job planned) commitment at another time. This is particularly important if you are being asked to replace your own SPA time with clinical work to cover and you should expect arrangements to be made for you to undertake your SPA work at another time, and to be paid at the appropriate rate.

Employers are responsible for safe staffing

Those acting as the senior doctor on-call during the out-of-hours period on strike days will still have professional responsibilities to provide care for patients.  However, NHS board employers have a responsibility to provide safe staffing. Therefore, depending on the intensity of the work or the area being covered in terms of senior decision making, if you agree to act down and work resident on-call, then a second doctor is likely to be required to provide additional cover.  You are unlikely to be able to undertake both roles simultaneously. 

Employers must comply with UK working time regulations

This is so you can have appropriate rest. You should not be asked to work during the day before or the day after a resident night shift or to extend your working day/week excessively. Whilst the Working Time Regulations are based on averaging of hours, it is poor practice and unsafeto extend the normal working day or week too far.  

Working within your scope of practice

‘Acting down’ to provide cover for absent resident doctor colleagues may involve tasks that you have not had to perform for many years, and you may have concerns about your ability to undertake them safely. You have a professional obligation to act within their sphere of competence. As such, you need to be clear with your employer if you do not feel that you can safely and competently perform the work required, or if doing such work may expose you to enhanced risk of medico-legal consequences. If your employer refuses to take the necessary action to support you – which may include some refresher training on elements of the resident doctor role - or to make alternative arrangements – whether providing other suitable cover or cancelling or rearranging scheduled care – then you should contact the BMA and your MDO (medical defence organisation) immediately.

Raising concerns about safe staffing

If you have significant concerns that the arrangements proposed by your NHS board employer will not ensure patient or staff safety during periods of strike action, you should make your employer aware of these concerns as soon as you become aware of them and as far in advance as possible. It is recommended that you put such concerns in writing – a simple email to your clinical line manager and/or rota co-ordinator  should suffice – and we would recommend that you also copy in your local negotiating committee to these concerns, which are likely to be shared by colleagues across your employing NHS board.  

If your employer does not respond adequately to these concerns, you should either contact your LNC or BMA advisers.

Pay

You should ensure you are paid appropriately for any ‘acting-down’ or ‘resident on-call’ cover

If you agree to act down and/or be resident on-call, this is work that is in addition to your job plan and it is important that it is remunerated separately. For consultants, this may be at the appropriate rates outlined in the BMA Scotland consultant rate card or as per your local policy if one has been agreed upon with your Local Negotiating Committee (LNC). Most local agreements refer only to consultants so SAS doctors acting down or doing RoC should agree a comparable rate in advance as part of the agreement to do the RoC.  It is therefore advisable to contact your LNC to check what policies are in place in this regard.

Leave

Your employer cannot unilaterally cancel job planned PAs

Your job plan is contractual as it is part of the consultant contract. As such, the contents of a previously mutually agreed job plan cannot be unilaterally overridden by an employer, irrespective of whether that is in the form of DCC or SPA work, although proposals to cancel SPA work are likely to be more common.

While you may agree to reschedule your SPAs in order to help provide emergency DCC cover during resident doctor strike days you are under no obligation to do so, and your employer certainly can’t unilaterally decide that any SPA PAs should be cancelled altogether. If you do agree to provide cover by either rescheduling or substituting job planned PAs, it is important that this is remunerated appropriately, recognising any additional hours or shifts to work at times where premium rates of pay should be applied

You are under no obligation to accept any additional DCC but may wish to do so using  the BMA recommended rates outlined for consultants,. Any work, including  SPA work “time shifted” and done at a time of your convenience,  if in premium hours, then you should be paid at the appropriate enhanced rate for that period as a minimum.

Your employer should only cancel pre-booked leave as a last resort

Employers will have advance notice of strike days and should make arrangements which don’t involve cancelling pre-booked annual leave to ensure continuity of patient care. As such, it should not be necessary for employers to try to cancel your annual leave, although it is likely that they will not accept any request for annual leave on strike days after the dates are confirmed.

Seeking to cancel annual leave should be a last resort only after all other options have been considered and exhausted. Even in such cases, there is a legal requirement for your employer to give you notice equivalent at least to the length of the period of annual leave being cancelled (i.e. if they are asking you to cancel a full 3 days of annual leave to provide cover, then you should be advised at least three days in advance of that decision. If the period being cancelled is part of a longer block of leave, you should expect the notice equivalent to the full period of leave.

If your employer seeks to cancel pre-booked leave, you should get in touch with BMA advisers.

Your employer 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, cancellation of study leave should only be considered as a last resort after all other avenues (such as cancelling routine activity) have been exhausted.

Your employer is not entitled to cancel your private practice sessions or to call you in on other non-working days

Under the terms of the consultant contract, any regular private sessions you undertake will have been noted in your job plan as part of the annual job planning process and will pose no conflict with your agreed job plan. Your NHS board employer is not entitled to unilaterally dictate to you that you should cancel these private practice sessions in order to fill gaps in staffing during strike action.

Equally, your job plan and rota will define in advance what your normal working days are, and in many cases this will be to a fixed pattern. Normal working days as per job plans, and rotas that have been issued in advance, should not be changed without your prior agreement.