What you will learn from this guide
All non-contractual work needs to be agreed between the consultant and the employer and is subject to negotiation over terms, including pay.
Consultants are within their rights to negotiate their own rates of pay and are not obliged to undertake this work if they deem the rates of pay to be inadequate. Local negotiating committees (LNCs) are able to negotiate standardised rates with employers locally. However, even where such agreements are in place this does not override your right to refuse non-contractual work.
To ensure you are informed of your rights when it comes to non-contractual activity, this guide will provide you with:
- examples of work not covered under the consultants' standard T&C's of service
- example responses to employer questions
Examples of non-contractual work
The following are general examples of non-contractual activity where the performance of and the rate of pay (or PA allowance or time off in lieu attached to it) need to be agreed by you and your employer.
Examples of work which may not be covered by contractual requirements:
- Catch-up work such as waiting list initiatives (WLIs) and similar
- Weekend clinics
- Extra lists at the weekend (including trauma lists)
- Covering long term absence due to sickness
- Additional shifts (e.g., in emergency departments)
The above list is not exhaustive. There are other types of work that are regularly undertaken by consultants, over and above their standard contracted work and constitutes extra-contractual work or overtime.
This includes activity such as:
- ward rounds (including post-on call ward rounds) in premium time (time outside of 7am-7pm Monday to Friday)
- providing cover for foreseeable resident doctor colleague absences
- programmed resident on-call in premium
- periods of on-call in premium time which necessitate a consultant in practice to be resident whilst 'on call'
It is important not to refuse to do or to demand extra payment for work that is currently part of your negotiated and agreed job plan.
The guidance below addresses the steps to take in relation to extra-contractual work that has been incorporated into your job plan.
If you are in any doubt about the status of a particular activity in your job plan, please contact BMA via our employment advice form.
Specific examples of non-contractual work
As a further detailed example, we have highlighted several ways a particular type of additional work may be delivered and the different steps you can take for each one. In this case, we have used arrangements around waiting list initiatives as a specific example.
Write to your employer to give notice.
Usually three months, to cease this type of work and notice of new acceptable rates you would undertake the work for (if relevant)
Mutually agreed job plans with above 10 PAs will require at least 3 months’ notice to cease this work.
If you have agreed to a job plan with additional activity above your standard 10 PA contract (for example, an 11 PA job plan with a session at the weekend) you will need to give three months' notice of your intention to cease doing this work.
Additional PAs above 10 can be stopped with notice as the national contract for full-time consultants is for 10 PAs (though the same applies to those working less than full-time for any PAs worked over and above their contracted amount).
Of course, the work will still need to be done and you are within your rights to be available to undertake the work at a new agreed rate in the future.
Where a consultant wishes to undertake private practice, their employer has the right to first offer them an additional programmed activity over and above their standard commitment.
A full-time consultant delivering 11 PAs will already be fulfilling these obligations. If, however, a consultant declines to undertake that additional PA, and no other consultant in their department is willing to take it up instead, an employer is able to defer that consultant's pay progression for the year in question, if they proceed to undertake private practice. In view of the current tax implications of pensionable pay increasing suddenly, that may not be an issue in the short term. Positions will of course vary.
Additionally, if you decline this additional session but someone else in the department picks up the extra work, again you will suffer no detriment.
If you are already doing an additional session beyond your standard contracted amount and you wish to stop, simply write to your employer to give your notice to cease doing this work, unless acceptable rates are negotiated.
Many consultants who work in acute specialties will not undertake ‘catch-up work’ or WLIs but will be frequently asked to undertake additional hours.
This is often requested at short notice, either as 'locum hours' (though this name is misleading) added onto the end of a scheduled shift or being asked to provide additional clinical cover on their days off.
Again, there is no obligation for consultants to agree to undertake this additional work, save for in instances where unforeseen short-term cover is required and delivering it is 'practicable' for the consultant in question. In practice, 72 hours' notice is sufficient for an employer to make alternative arrangements and would not be considered 'unforeseen short-term cover'.
In all other instances, consultants should consider whether the rate offered by their NHS employer is suitable and, if not, seek to agree a new rate.
Consultants working less than full-time (LTFT) undertaking extra-contractual work are entitled to the same overtime rates as their full-time colleagues for work conducted over and above their contract.
Some employers argue that, for those on LTFT contracts, any PAs of additional work up to the 10 of a full-time contract must be paid at standard contractual rates, but this is not the case.
Any work beyond your standard contracted amount is, by definition, extra-contractual and if your employer wishes to secure your agreement to undertake it, they will need to offer a rate that you think appropriate.
Compensation for additional work
The decision to work overtime or additional hours and other activity worked beyond the standard contract (such as waiting list initiatives) rests entirely with the consultant.
There is wide variation around the country in the amount paid for this work. Consultants must determine an appropriate rate they think adequately rewards them for their work and to decline the offer of extra-contractual work that doesn't value them appropriately.
What you can do
Carefully consider whether the rates of pay offered by your NHS employer are worth the loss of your free time, and whether they represent the realistic market value of your training and skills.
If that is not offered, then we are asking NHS consultants to decline the work unless a fair rate is paid. For extra-contractual work that is job planned, you may wish to give formal notice that such work will cease after three months from the date of notice, unless a suitable rate can be agreed.
This non-contractual work should not be simply timetabled into job plans at standard contractual rates.
Professional obligations
The clinical and professional responsibility you have for your patients does not mean that you must provide services over and above those for which you are contracted, or that you cannot give reasonable notice to cease doing such additional services.
Indeed, the overall responsibility for maintaining clinical services lies with the employer and not individual consultants. Employers should make alternative arrangements for the provision of care by the end of the three-month notice period, which you can provide, before the work ceases to be undertaken. Therefore, the decision to do so should not give rise to detriment to the patients currently in a consultant's care.
Until new rates of pay can be mutually agreed, the decision to cease undertaking such work should not place a consultant in conflict with their obligations under the GMC's Good Medical Practice.
Example responses to employer questions
Below are some responses you may hear from your employers when negotiating rates for non-contractual work and answers you may want to consider.
You cannot hold the department to ransom
This work is extra-contractual, and I have the choice to value my time appropriately. I am charging a rate that I have determined appropriately rewards me for my time and work. The average consultant take-home pay in England is down nearly 35% compared to inflation since 2008/09, and it is my right to earn appropriate rates for additional work I do outside of my contract. I would like to help my employer by doing extra work, but if they are not paying a fair rate, I am not required to undertake the work.
You have a responsibility to the patients
And I take that responsibility very seriously and will continue to fulfil all aspects of my contract and continue to deliver excellent care. However, I cannot be forced or made to feel guilty about not undertaking extra work in my own time for inadequate rates of pay.
This is a GMC matter
It is not a matter for the GMC and indeed, threatening referral and using this as a threat for me to work extra in my own time is harassment. I continue to deliver everything expected of me as required under my contract and Good Medical Practice. Whether or not I undertake additional extra-contractual work is my choice. I have also given my employer the required notice.
You are taking money from other staff
The funding of the health service is a matter of political choice for the government. I am only asking to be paid fairly for work I undertake that is outside of my contract.
You are taking money from patients
The government have a responsibility to provide a health service, it is not the responsibility of individuals. Part of that responsibility is to pay staff enough to motivate them. It’s a political choice.
Your colleagues are agreeing to less
Being extra contractual it’s a matter for personal choice.
You’re just being greedy
Our take home pay has fallen by nearly 35% in real terms since 2008/09; correcting for that in part is not being greedy.
You’re already well paid
Our pay has fallen compared with comparators and the private sector; consultant pay has done markedly worse even compared to other staff in the NHS who have performed worse than others in the public sector.
It is not in our budget
It is not my responsibility to ensure that sufficient budget is allocated to adequately pay doctors to provide the service.
It’s not professional
What I do outside my contract is a personal choice and plenty of other professionals decline extra work if the remuneration is not appropriate.
